Thursday, January 18, 2007

Part II

Department of Transportation Federal Motor Carrier Safety Administration

49 CFR Part 350, et al. Electronic On-Board Recorders for Hours- of-Service Compliance; Proposed Rule

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DEPARTMENT OF TRANSPORTATION voluntarily use EOBRs in their CMVs: Comments received after the comment Revising the Agency’s compliance closing date will be included in the Federal Motor Carrier Safety review procedures to permit docket and the Agency will consider Administration examination of a random sample of late comments to the extent practicable. drivers’ records of duty status; FMCSA may, however, issue a final rule 49 CFR Parts 350, 385, 395, and 396 providing partial relief from HOS at any time after the close of the [Docket No. FMCSA–2004–18940] supporting documents requirements, if comment period. certain conditions are satisfied; and FOR FURTHER INFORMATION CONTACT: Ms. RIN–2126–AA89 other potential incentives made possible Deborah M. Freund, Vehicle and by the inherent safety and driver health Roadside Operations Division, Office of Electronic On-Board Recorders for benefits of EOBR technology. and Truck Standards and Hours-of-Service Compliance DATES: Comments must be received by Operations, (202) 366–4009, Federal AGENCY: Federal Motor Carrier Safety April 18, 2007. Motor Carrier Safety Administration, Administration (FMCSA), DOT. ADDRESSES: You may submit comments 400 Seventh Street, SW., Washington, ACTION: Notice of proposed rulemaking identified by DOT DMS Docket Number DC 20590–0001. (NPRM); request for comments. FMCSA–2004–18940 by any of the SUPPLEMENTARY INFORMATION: This following methods: rulemaking notice is organized as SUMMARY: The Federal Motor Carrier • Web site: http://dms.dot.gov. follows: Safety Administration (FMCSA) Follow the instructions for submitting I. Legal Basis for the Rulemaking proposes to amend the Federal Motor comments on the DOT electronic site. II. Background Carrier Safety Regulations (FMCSRs) to • Fax: 1–202–493–2251. III. Executive Summary incorporate new performance standards • Mail: Docket Management Facility; IV. Discussion of Comments to the ANPRM for electronic on-board recorders U.S. Department of Transportation, 400 A. Overview of Comments (EOBRs) installed in commercial motor Seventh Street, SW., Nassif Building, B. Key Research Factors vehicles (CMVs) manufactured on or Room PL–401, Washington, DC 20590– C. Comments on the Requested Subjects 1. Synchronization of Recorder to a Vehicle after the date 2 years following the 0001. • Operating Parameter effective date of a final rule. On-board Hand Delivery: Room PL–401 on 2. Amendment of Records hours-of-service recording devices the plaza level of the Nassif Building, 3. Duty Status Categories When the CMV meeting FMCSA’s current requirements 400 Seventh Street, SW., Washington, Is Not Moving and voluntarily installed in CMVs DC, between 9 a.m. and 5 p.m., Monday 4. Ensuring Drivers Are Properly Identified manufactured before the through Friday, except Federal 5. Reporting and Presentation (Display) implementation date of a final rule may Holidays. Formats continue to be used for the remainder of • Federal eRulemaking Portal: Go to 6. Audit Trail/Event Log the service life of those CMVs. Under 7. Ability To Interface with Third-Party http://www.regulations.gov. Follow the Software for Compliance Verification the proposal, motor carriers that have online instructions for submitting 8. Verification of Proper Operation demonstrated a history of serious comments. 9. Testing and Certification Procedures noncompliance with the hours-of- Instructions: All submissions must 10. EOBR Maintenance and Repair service (HOS) rules would be subject to include the Agency name and docket 11. Development of ‘‘Basic’’ EOBRs To mandatory installation of EOBRs number or Regulatory Identification Promote Increased Carrier Acceptance meeting the new performance standards. Number (RIN) for this rulemaking (RIN– 12. Definitions—Basic Requirements If FMCSA determined, based on HOS 2126–AA89). Note that all comments 13. Potential Benefits and Costs records reviewed during each of two received will be posted without change 14. Incentives To Promote EOBR Use compliance reviews conducted within a to http://dms.dot.gov, including any 15. Miscellaneous Questions V. Agency Proposal 2-year period, that a motor carrier had personal information provided. Please A. Technology a 10 percent or greater violation rate see the Privacy Act heading for further B. Remedies (‘‘pattern violation’’) for any regulation information. C. Incentives in proposed Appendix C to Part 385, Docket: For access to the docket to VI. Rulemaking Analyses and Notices FMCSA would issue the carrier an read background documents including Executive Order 12866 (Regulatory Planning EOBR remedial directive. The motor those referenced in this document, or to and Review) and DOT Regulatory carrier would be required to install read comments received, go to http:// Policies and Procedures EOBRs in all of its CMVs regardless of dms.dot.gov at any time or to Room PL– Regulatory Flexibility Act their date of manufacture and to use the 401 on the plaza level of the Nassif Unfunded Mandates Reform Act Executive Order 13132 (Federalism) devices for HOS recordkeeping for a Building, 400 Seventh Street, SW., Executive Order 12372 (Intergovernmental period of 2 years, unless the carrier Washington, DC, between 9 a.m. and 5 Review) already had equipped its vehicles with p.m., Monday through Friday, except Paperwork Reduction Act automatic on-board recording devices Federal Holidays. National Environmental Policy Act (AOBRDs) meeting the Agency’s current Privacy Act: Anyone is able to search E.O. 13211 (Energy Supply, Distribution or requirements under 49 CFR 395.15 and the electronic form of all comments Use) could demonstrate to FMCSA that its received into any of our dockets by the E.O. 12898 (Environmental Justice) drivers understand how to use the name of the individual submitting the E.O. 13045 (Protection of Children) devices. We also propose changes to the comment (or signing the comment, if E.O. 12988 (Civil Justice Reform) E.O. 12630 (Taking of Private Property) safety fitness standard that would submitted on behalf of an association, National Technology Transfer and require this group of carriers to install, business, labor union, etc.). You may Advancment Act use, and maintain EOBRs in order to review DOT’s complete Privacy Act Privacy Impact Assessment meet the new standard. Finally, FMCSA Statement in the Federal Register would encourage industrywide use of published on April 11, 2000 (65 FR I. Legal Basis for the Rulemaking EOBRs by providing the following 19477) or you may visit http:// The Motor Carrier Act of 1935 (Pub. incentives for motor carriers to dms.dot.gov. L. 74–255, 49 Stat. 543, August 9, 1935,

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now codified at 49 U.S.C. 31502(b)) (the hours accurately, thus preventing (HMTAA) requires the Secretary to 1935 Act) provides that ‘‘[t]he Secretary regulatory violations or excessive driver prescribe regulations to improve—(A) of Transportation may prescribe fatigue, and to schedule vehicle and compliance by commercial motor requirements for—(1) qualifications and driver operations more efficiently. vehicle drivers and motor carriers with maximum hours of service of employees Driver compliance with the HOS rules hours-of-service requirements; and (B) of, and safety of operation and helps ensure that ‘‘the physical the effectiveness and efficiency of equipment of, a motor carrier; and (2) condition of [commercial motor vehicle Federal and State enforcement officers qualifications and maximum hours of drivers] is adequate to enable them to reviewing such compliance. HMTAA service of employees of, and standards operate the vehicles safely.’’ (49 U.S.C. section 113(b) states that such of equipment of, a motor private carrier, 31136(a)(3)) To assist in the regulations must allow for a motor when needed to promote safety of enforcement of the HOS regulations carrier’s use of a ‘‘written or electronic operation.’’ This notice of proposed generally, and thus improve driver document[s] to be used by a motor rulemaking (NPRM) addresses ‘‘safety of safety and welfare, FMCSA proposes to carrier or by an enforcement officer as operation and equipment’’ of motor require EOBR use by motor carriers with a supporting document to verify the carriers and ‘‘standards of equipment’’ the most serious HOS compliance accuracy of a driver’s record of duty of motor private carriers and, as such, is deficiencies (‘‘pattern violations’’), as status.’’ Today’s EOBR proposals set well within the authority of the 1935 described elsewhere in this NPRM. The forth performance standards, incentives Act. The NPRM would allow motor Agency considered whether this measures, and remedial requirements carriers to use EOBRs to document proposal would impact driver health for use of devices that generate such drivers’ compliance with the HOS under 49 U.S.C. 31136(a)(3) and (a)(4). electronic documents and address the requirements; require some Since the proposal could increase HMTAA mandate. noncompliant carriers to install, use, compliance with the HOS regulations, Section 9104 of the Truck and Bus and maintain EOBRs for this purpose; including driving and off-duty time, it Safety and Regulatory Reform Act (Pub. and update existing performance would not have a deleterious effect on L. 100–690, November 18, 1988, 102 standards for on-board recording the physical condition of drivers. (See Stat. 4181, at 4529) also anticipates the devices. the discussion regarding health impacts Secretary prescribing ‘‘a regulation The Motor Carrier Safety Act of 1984 at section 13.3.) The requirements in 49 about the use of monitoring devices on (Pub. L. 98–554, Title II, 98 Stat. 2832, U.S.C. 31136(a)(1) concerning safe commercial motor vehicles to increase October 30, 1984) (the 1984 Act) motor vehicle maintenance, equipment, compliance by operators of the vehicles provides concurrent authority to and loading are not germane to this with hours of service regulations,’’ and regulate drivers, motor carriers, and proposed rule, as EOBRs influence requires the Agency to ensure that any vehicle equipment. It requires the driver operational safety rather than such device is not used to ‘‘harass Secretary to ‘‘prescribe regulations on vehicular and mechanical safety. vehicle operators.’’ (49 U.S.C. 31137(a)) commercial motor vehicle safety. The Consequently, the Agency has not Section 4012 of the Transportation regulations shall prescribe minimum explicitly assessed the proposed rule Equity Act for the 21st Century (Pub. L. safety standards for commercial motor against that requirement. However, to 105–178) (TEA–21) makes inapplicable vehicles. At a minimum, the regulations the limited extent 49 U.S.C. 31136(a)(1) to drivers of utility service vehicles, shall ensure that—(1) commercial motor pertains specifically to driver safety, the during an emergency period of not more vehicles are maintained, equipped, Agency has taken this statutory than 30 days, regulations issued under loaded, and operated safely; (2) the requirement into account throughout 49 U.S.C. 31502 or 31136 regarding ‘‘the responsibilities imposed on operators of the proposal. installation of automatic recording commercial motor vehicles do not In addition, section 408 of the ICC devices associated with establishing the impair their ability to operate the Termination Act of 1995 (Pub. L. 104– maximum driving and on-duty times.’’ vehicles safely; (3) the physical 88, 109 Stat. 803, at 958) (ICCTA) (49 U.S.C. 31502(e)(1)(C)) condition of operators of commercial required the Agency to issue an advance Based on the statutory framework motor vehicles is adequate to enable notice of proposed rulemaking reviewed previously, FMCSA thus has them to operate the vehicles safely; and (ANPRM) ‘‘dealing with a variety of statutory authority to adopt an (4) the operation of commercial motor fatigue-related issues pertaining to industrywide requirement that all motor vehicles does not have a deleterious commercial motor vehicle safety carriers subject to HOS requirements effect on the physical condition of the (including * * * automated and under 49 CFR Part 395 install and use operators.’’ (49 U.S.C. 31136(a)) Section tamper-proof recording devices * * *) EOBR-based systems. The Agency elects 211 of the 1984 Act also grants the no later than March 1, 1996.’’ The not to exercise the full extent of its Secretary broad power, in carrying out original ANPRM under section 408 of authority at this time, however, and motor carrier safety statutes and ICCTA was published on November 5, instead proposes a more targeted regulations, to ‘‘prescribe recordkeeping 1996 (61 FR 57252), the NPRM on May approach of mandating EOBR use for and reporting requirements’’ and to 2, 2000 (65 FR 25540), and the final rule only those carriers with deficient safety ‘‘perform other acts the Secretary on April 28, 2003 (68 FR 22456). As management controls, as demonstrated considers appropriate.’’ (49 U.S.C. discussed further later in this preamble, by repeated patterns of hours-of-service 31133(a)(8) and (10)) FMCSA decided not to adopt EOBR violations. In this NPRM, the Agency The HOS regulations are designed to regulations in 2003. FMCSA noted, proposes criteria for identifying carriers ensure that driving time—one of the however, that it planned ‘‘to continue with patterns of HOS violations. We principal ‘‘responsibilities imposed on research on EOBRs and other also propose changes to the safety the operators of commercial motor technologies, seeking to stimulate fitness standard that would require this vehicles’’—does ‘‘not impair their innovation in this promising area’’ (68 group of carriers to install, use, and ability to operate the vehicles safely.’’ FR 22456, at 22488, Apr. 28, 2003). maintain EOBRs in order to meet the (49 U.S.C. 31136(a)(2)) EOBRs that are Section 113(a) of the Hazardous new standard. properly designed, used, and Materials Transportation Authorization The determination of a carrier’s safety maintained would enable motor carriers Act of 1994 (Pub. L. 103–311, August fitness is well within the Secretary’s to track their drivers’ on-duty driving 26, 1994, 108 Stat. 1673, at 1676) authority. Section 215 of the 1984 Act

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requires the Secretary to ‘‘determine State agencies use these records to carry used.’’ The design must permit duty whether an owner or operator is fit to out safety oversight activities. status to be updated only when the operate safely commercial motor As FMCSA discussed in its September vehicle is at rest, unless the driver is vehicles,’’ (49 U.S.C. 31144(a)(1)) and to 2004 ANPRM on EOBRs (69 FR 53386, registering the crossing of a State ‘‘maintain by regulation a procedure for Sept. 1, 2004), the methods of recording boundary. The AOBRD and support determining the safety fitness of an and documenting HOS have been systems must be resistant to tampering owner or operator.’’ (49 U.S.C. 31144(b)) modified several times over the years. ‘‘to the maximum extent practicable.’’ That procedure must include ‘‘[s]pecific The Interstate Commerce Commission The AOBRD must provide a visual or initial and continuing requirements (ICC) first established a requirement for audible to the driver if it ceases with which an owner or operator must a Driver’s Daily Log in 1940. This to function, and any sensor failures and comply to demonstrate safety fitness.’’ requirement was later revised to add the edited data must be identified in the (49 U.S.C. 31144(b)(1)) Section 4009 of familiar graph-grid recording format to RODS printed from the device. Finally, TEA–21 prohibits motor carriers found the driver’s log, which became known the AOBRD must be maintained and to be unfit according to a safety fitness as ‘‘Driver’s Record of Duty Status recalibrated according to the determination from operating (RODS).’’ manufacturer’s specifications; drivers commercial motor vehicles in interstate In the mid-1980s, motor carriers must be adequately trained in the commerce. With limited exceptions, began to look to automated methods of proper operation of the device; and the owners and operators determined to be recording drivers’ duty status as a way motor carrier must maintain a second unfit may not operate commercial motor of saving drivers time and improving (backup) copy of electronic HOS files in vehicles in interstate commerce the efficiency of their compliance- a separate location. beginning on the 61st day after the date assurance procedures. On April 17, At the time § 395.15 was issued, the of such fitness determination, or the 1985 (50 FR 15269), the Federal technology to allow on-board recorders 46th day after such determination in the Highway Administration (FHWA), the to communicate data wirelessly between case of carriers transporting passengers predecessor Agency to FMCSA within the CMV and the motor carrier’s base of or hazardous materials, ‘‘and until the the U.S. Department of Transportation operations did not exist on a Secretary determines such owner or (DOT), granted a waiver to Frito-Lay, widespread commercial basis. Today’s operator is fit.’’ (49 U.S.C. 31144(c)) Inc. to allow it to use on-board technologies allow for real-time Section 4104 of the Safe, Accountable, computers rather than requiring its transmission of a vehicle’s location and Flexible, Efficient Transportation Act: A drivers to complete handwritten RODS other operational information. FMCSA Legacy for Users (Pub. L. 109–59, (the driver logbook, or ‘‘logs’’). Nine calls these current-generation recording August 10, 2005, 119 Stat. 1144) other motor carriers were subsequently devices EOBRs. By exploiting the power (SAFETEA–LU) directs FMCSA to granted waivers. of these technologies, a motor carrier In 1986, the Insurance Institute for revoke the registration of a motor carrier can improve not only its scheduling of Highway Safety (IIHS) petitioned FHWA that has been prohibited from operating vehicles and drivers but also its asset to require the installation and use of in interstate commerce for failure to management and customer service. In automatic on-board recordkeeping comply with the safety fitness fact, some system providers offer systems. Although the petition was requirements of 49 U.S.C. 31144. applications for real-time HOS denied, FHWA determined that Section 4114(b) of SAFETEA–LU monitoring that build upon the time- regulations were needed to allow motor expands FMCSA jurisdiction into and location-tracking functions carriers to use AOBRDs without having intrastate operations by amending 49 included in the providers’ hardware and to seek waivers. After providing the U.S.C. 31144(c) to prohibit from software products. Because of these public with notice and opportunity to operating in interstate commerce and developments in technology and comment, FHWA issued a final rule on intrastate operations affecting interstate communications, the current, narrowly September 30, 1988 (53 FR 38666), commerce owners or operators of CMVs crafted on-board recorder regulations which revised part 395 of the FMCSRs that FMCSA has determined do not require revision. to allow, but not require, motor carriers meet the safety fitness requirement to On August 3, 1995, the IIHS, to equip CMVs with AOBRDs instead of operate in interstate commerce, until the Advocates for Highway and Auto Safety requiring drivers to complete Secretary determines that such owner or (Advocates), and several other highway handwritten RODS (49 CFR 395.15). An operator is fit. safety and advocacy organizations AOBRD was defined under § 395.2 as: petitioned FHWA to require on-board II. Background * * an electric, electronic, recorders in CMVs. The petitioners The Federal HOS regulations (49 CFR electromechanical, or mechanical device believed that mandated use of these capable of recording driver’s duty status Part 395) limit the number of hours a devices would improve HOS information accurately and automatically as compliance, thereby reducing the commercial motor vehicle driver may required by § 395.15. The device must be drive and be on duty each day, and integrally synchronized with specific number of fatigued drivers and fatigue- during each 7- or 8-day period. The operations of the commercial motor vehicle related crashes. Subsequently, FMCSA rules are needed to prevent commercial in which it is installed. At a minimum, the included in its May 2, 2000, NPRM (65 vehicle operators from driving for long device must record engine use, road speed, FR 25540) on HOS a proposal to require periods without opportunities to obtain miles driven, the date, and time of day. EOBRs on commercial motor vehicles adequate sleep. Sufficient sleep is Performance requirements for used in long-haul and regional necessary to ensure that a driver is alert AOBRDs are straightforward. The operations. In its report ‘‘Top Ten behind the wheel and able to respond AOBRD and its support systems must be Management Issues’’ (Report Number appropriately to changes in the driving certified by the manufacturer as PT–2001–017, January 18, 2001) the environment. Under § 395.8, all motor evidence that they ‘‘have been DOT Office of Inspector General carriers and drivers (except private sufficiently tested to meet the summarized the NPRM regarding EOBR motor carriers of passengers [non- requirements of § 395.15’’ and use as follows: business]) must keep records to track Appendix A to Part 395 ‘‘under the Driver HOS violations and falsified driver on-duty and off-duty time. FMCSA and conditions in which they would be logs continue to pose significant safety

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concerns. Research has shown that fatigue is at a minimum, to collect and analyze compliance. The approach has three a major factor in crashes. data on the costs and benefits of components: (1) A new performance- During roadside safety inspections, the most requiring EOBRs.’’ (Id. at 1221) oriented standard for EOBR technology; frequent violation cited for removing a driver On September 1, 2004, FMCSA (2) use of EOBRs to remediate regulatory from operation is exceeding allowed hours of published an ANPRM requesting noncompliance; and (3) incentives to service. Use of electronic recorders and other technologies to manage the HOS comments on a wide range of issues promote EOBR use. FMCSA believes requirements has significant safety value. related to the design, use, applicability, this approach strikes an appropriate FMCSA’s [May 2, 2000] proposed rulemaking costs, and benefits of EOBRs (69 FR balance between promoting highway would revise the hours of service by reducing 53386). FMCSA also conducted research safety and minimizing cost and the driving time allowed within a 24-hour into the current use, design, and costs operational burdens on motor carriers period and by phasing in, over a period of of EOBRs and other communications that demonstrate strong and consistent years, the use of on-board electronic systems being deployed by trucking compliance with the HOS regulations. recorders to document drivers’ hours of companies, to provide additional EOBR Performance Requirements. In service. The Congress prohibited the information on which to base an developing the proposed requirements Department from adopting a final rule during approach to incorporating EOBR for EOBRs, FMCSA focused its attention FY 2001. FMCSA management should use this time to consider all of the comments requirements in the FMCSRs. This on seven research factors listed in the received and revise the proposed rule as proposed rule is based, therefore, both ANPRM: (1) Ability to identify the appropriate. on the comments received to the individual driver; (2) Tamper resistance; ANPRM and on independent research (3) Ability to produce records for audit; When FMCSA published its final the Agency conducted. The four (4) Ability of roadside enforcement HOS rule in April 2003, however, the research studies cited in the ANPRM are personnel to access the HOS proposal for mandatory use of EOBRs available in the docket at entries 2, 3, 6, information quickly and easily; (5) Level for CMVs used in long-haul and regional and 7. FMCSA sponsored three of protection afforded other personal, operations was withdrawn (68 FR additional studies: ‘‘Recommendations operational, or proprietary information; 22456, Apr. 28, 2003). FMCSA Regarding the Use of Electronic On- (6) Cost; and (7) Driver acceptability. concluded there were insufficient Board Recorders (EOBRs) for Reporting FMCSA proposes that the EOBR record economic and safety data, coupled with Hours of Service (HOS),’’ prepared by basic information needed to track duty a lack of support from the transportation staff of the John A. Volpe National status, including the identity of the community at large, to justify an EOBR Transportation Systems Center, U.S. driver, duty status, date and time, requirement at that time. The Agency Department of Transportation Research location of the CMV, distance traveled, based these conclusions on the and Innovative Technology and other items that the driver would following: Administration, Cambridge, enter (such as truck numbers and (1) Neither the costs nor the benefits Massachusetts (‘‘Volpe Center Study’’); shipping document numbers). The of EOBR systems were adequately ‘‘Technical Review and Assessment: EOBR would be required to identify the ascertainable, and the benefits were Recommendations Regarding the Use of driver, although FMCSA does not easier to assume than to accurately Electronic On-Board Recorders (EOBRs) propose mandating a specific estimate. for Reporting Hours of Service (HOS),’’ identification method. This approach (2) The EOBR proposal was drafted as prepared by Dr. Kate A. Remley, would allow carriers to use existing a performance standard, but Electromagnetics Division, National identification systems or implement enforcement officials generally preferred Institute of Standards and Technology, newer technologies as they become the concept of a design standard to Boulder, Colorado; and the 2005 update feasible. facilitate data accessibility. of ‘‘On-Board Recorders: Literature and While many of the proposed (3) There was considerable opposition Technology Review,’’ prepared by requirements, such as that for tamper to the proposal to phase in the EOBR Cambridge Systematics (Cambridge, resistance, parallel the requirements for requirement, starting with large long- Massachusetts). These studies are also AOBRDs, others would extend the haul motor carriers—those having more in the docket. AOBRD requirements based on our than 50 power units. Large carriers Three of FMCSA’s sister agencies expectation that the EOBR will have a argued that mandated EOBR use was within DOT–FHWA, the National high degree of reliability. The EOBR irrational because small carriers Highway Safety Administration would not need to be integrally generally have higher crash rates. Major (NHTSA), and the Federal Railroad synchronized to the engine or other operators also complained that the Administration—conducted a peer vehicle equipment. An EOBR must, phase-in schedule would force them to review of the Volpe Center Study in however, have GPS or other location pay high initial prices for EOBRs, while accordance with Office of Management tracking systems that record location of carriers allowed to defer the and Budget peer review requirements. the CMV at least once a minute. EOBRs requirement would benefit from the The reviewers evaluated the research could still use sources internal to the lower costs associated with increased with respect to scientific and technical vehicle to record distance traveled and demand, competition, and economies of merit, adequacy, and overall quality. A time. EOBRs must perform a power-on scale. summary report of the peer review self-test on demand and must also warn (4) There was considerable concern panel’s evaluation and FMCSA’s the driver if the device ceased to about the potential use of EOBR data for response to the evaluation are available function. Maintenance, recalibration, purposes other than HOS compliance. in the Agency’s EOBR Peer Review and self-certification requirements On July 16, 2004, the docket (FMCSA–2006–25548) of the would be similar to those for AOBRDs. Court of Appeals for the District of DOT Docket Management System. EOBRs would need to produce Columbia Circuit vacated the 2003 final parallel data streams of original and rule, for reasons unrelated to EOBRs. III. Executive Summary modified entries to provide an audit See Public Citizen, et al. v. FMCSA, 374 FMCSA proposes a comprehensive trail for data. FMCSA proposes several F.3d 1209 (D.C. Cir. 2004). In dicta, rule intended to improve CMV safety, options for information transfer and however, the court stated that section increase use of EOBRs within the motor display; EOBRs could produce the 408 of the ICCTA ‘‘required the Agency, carrier industry, and to improve HOS driver’s HOS chart in a graph-grid

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format in either electronic or printed under a remedial directive to install, Also commenting were six advocacy form. Data transfer could be either use, and maintain EOBRs. organizations and eight associations hardwired or wireless. Under this proposed rule, FMCSA representing companies such as EOBR Use Requirements. FMCSA is also would provide partial relief from utilities, ready-mixed concrete proposing to require EOBR use only for HOS supporting documents suppliers, and solid waste management those carriers found to have HOS requirements for motor carriers that firms. Finally, 15 vendors of EOBRs or violation rates of 10 percent or more of voluntarily use EOBRs, provided certain similar products, 3 individual non- the records reviewed during each of two conditions are satisfied. EOBRs meeting trucking firms, one union, and one law compliance reviews (CRs), when the the proposed requirements produce enforcement agency submitted two reviews are conducted within a 2- regular time and CMV location position comments. year period. These carriers would be histories sufficient to verify adequately In addition, 172 of the commenters to issued a remedial directive requiring a driver’s on-duty driving activities. FMCSA’s May 2, 2000, NPRM on hours that they install EOBRs in all of their Motor carriers voluntarily maintaining of service of drivers (65 FR 25540) CMVs and use the devices for HOS the time and location data produced by included comments on the issue of an recordkeeping for a period of 2 years. such devices would need to maintain EOBR requirement. Of these This approach focuses on carriers with only those additional supporting commenters, 48—including the National a history of serious HOS violations. documents as are necessary to verify on- Transportation Safety Board (NTSB), EOBR Incentives. FMCSA would duty not-driving activities and off-duty advocacy organizations, 8 carriers, and encourage all motor carriers to install status. 34 drivers—supported such a and use EOBRs. Some carriers are FMCSA is also requesting comment requirement, while 124 were opposed. reluctant to take this step, out of on other incentives for EOBR adoption. The latter group included construction concerns that EOBRs’ accuracy and the We are interested in identifying other industry associations and carriers, accessibility of the electronic records regulatory relief that a motor carrier’s trucking associations, an express carrier, they generate would cause safety EOBR use might justify, including relief and 88 drivers. investigators to examine all of the from specific HOS requirements or The potential imposition of an EOBR carrier’s HOS records and make minor limitations consistent with the safety requirement drew diverse comments. violations easier to identify. We believe and driver health benefits of EOBR Some motor carriers requested that these concerns are warranted. To avoid technology. FMCSA exempt them from any EOBR putting EOBR-using carriers at a Other Issues. In response to the requirement because of the nature of disadvantage during CRs, and to provide ANPRM, some carriers and drivers their activities. By contrast, other an incentive for EOBR use, under this expressed a reluctance to use EOBRs carriers thought any requirement to use proposed rule FMCSA would evaluate because of other uses that could be EOBRs should be applied evenly across HOS compliance differently during CRs made of the data the devices produce. the industry to maintain a level playing of carriers using EOBRs voluntarily than Drivers objected to the devices as an field. The Canadian Trucking Alliance during CRs of other carriers. If a carrier invasion of privacy and as a source of (CTA) stated that it ‘‘has adopted a voluntarily using EOBRs is found to information that could be used against policy position, which has been have HOS violations in 10 percent or them for non-HOS-related issues, such communicated to Canadian more of the records reviewed in the as speeding. Carriers were concerned governments at both the Federal and initial analysis, which focuses on that the data could be used in post-crash provincial levels, that calls for the drivers expected to have compliance mandatory use of EOBRs for the 1 litigation. Both asked that FMCSA limit problems, FMCSA would conduct a access to the data for the purpose of operators of all commercial vehicles, second review, of a random sample HOS compliance-related enforcement. where a commercial driver’s license is made up of records of duty status for the This NPRM does not propose to required to operate the vehicle and a carrier’s other drivers, and use the require EOBRs to record engine speed, logbook must be completed by the results of the second sample in although we are aware that other data driver under the current rules.’’ determining the carrier’s safety rating. could be used to derive that Advocacy organizations recommended FMCSA would assess civil penalties on information. We recognize the an across-the-board mandate, viewing full compliance with the HOS the carrier in the Notice of Claim phase industry’s concerns in this area, and are for all HOS violations discovered, regulations as vital to roadway safety. not proposing that EOBRs display, or regardless of the safety rating assigned. They believe EOBRs are necessary to make readily available to enforcement (If the initial, focused sample did not improve both motor carriers’ officials, information other than what is disclose a 10 percent or greater violation compliance with the HOS regulations necessary to determine compliance with rate, then under current regulations the and FMCSA’s ability to enforce them. the HOS regulations. violations found would not affect the Many drivers contended that carrier’s safety rating in any case.) We IV. Discussion of Comments to the mandating EOBR use would constitute believe this approach would remove a ANPRM an unwarranted (and possibly disincentive to EOBR use while unconstitutional) invasion of privacy. A. Overview of Comments maintaining the Agency’s focus on Some expressed concerns about safety. This incentive would not be FMCSA received 307 comments in trucking companies using EOBRs to available to motor carriers operating response to the ANRPM. Nearly half maximize driving time under the HOS (148) were from drivers or driver regulations at the expense of driver 1 FMCSA’s routine compliance review procedures trainers. There were 35 comments from health and safety. The Truckload call for FMCSA or State safety investigators to focus private citizens, not all of whom Carriers Association (TCA) cited their sample of HOS records on the RODS of drivers involved in interstate recordable accidents, drivers indicated whether they were drivers. protections afforded to consumer credit placed out of service for hours-of-service violations FMCSA also received comments from reports by the Fair Credit Reporting Act during roadside inspections, drivers discovered to 70 carriers, 35 of which were owner- and the protections of medical have poor driving records through Commercial operators. Fourteen trucking information required by the Health Driver’s License Information System checks, recently hired drivers, and drivers having a high associations submitted comments, as Insurance Portability and probability of excessive driving. did three passenger carrier associations. Accountability Act of 1996.

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Motor carriers and trucking industry maintenance and inspection of systems; responding to a rulemaking docket. associations also expressed concerns performance certification and Only IIHS suggested FMCSA has with a potential mandate. Many motor compliance of new systems; product enough information to craft a carriers, especially smaller companies, assurance and validation; ‘‘workable’’ EOBR mandate. Other echoed drivers’ concerns regarding the interoperability; and existing or future commenters urged FMCSA to move potential financial burden of installing system evolution. ATA also encouraged deliberately and obtain more and maintaining EOBRs. On the other FMCSA to expand the list by fostering information from motor carriers, law hand, several medium and large carriers an open stakeholder dialogue beyond enforcement personnel, and drivers. noted they currently use vehicle the docket submission period. With respect to EOBR performance Advocates supported the Agency’s tracking and wireless communication standards, ATA recommended a research criteria with the exception of systems. They asked FMCSA to consider facilitated dialogue among motor driver acceptance, contending this those systems as equivalent to EOBRs, carriers, FMCSA, and enforcement ‘‘cannot be used as a barometer for the similar to the exemption granted to personnel as the most effective way to mandatory adoption of this important (Werner) (69 FR develop standards serving the interests safety technology’’ because drivers face 56474, Sept. 21, 2004) to allow use of of all. Such a process could decrease pressure to accept schedules that cannot a system based upon global positioning ambiguities in interpretation between system (GPS) technology. Motor carriers be met without violating speed limits and among manufacturers and service using these and similar systems asserted and the HOS regulations. Advocates providers, increase EOBRs’ usefulness that the costs of installing and suggested adding three other criteria: to trucking companies, and improve the maintaining EOBRs would be High levels of crash damage resistance; efficiency of the HOS records auditing counterbalanced by savings from the capability to track real-time process. operating efficiencies and reduced geographic location to ensure paperwork. compliance with CMV weights-and- Schneider said the ‘‘continued Drivers generally expressed concerns dimensions laws and hazardous instability’’ of the Federal HOS about the EOBRs. They objected to the materials routing regulations; and regulations and the interrelationships potential purchase and maintenance interoperability of all EOBR data and between the HOS regulations and HOS costs, and questioned the potential for data retrieval ‘‘in accordance with the records make it difficult to answer the improved accuracy of EOBR-generated protocols that have been issued by the questions posed in the ANPRM. RODS over paper RODS, because Intelligent Transportation Systems Schneider and other commenters AOBRDs (and EOBRs) cannot consensus positions of the ITS America suggested FMCSA move forward automatically distinguish between ‘‘off- Committee and constitute a baseline for deliberately, promulgate tentative duty’’ and ‘‘on-duty not-driving’’ status interoperability in the U.S. Department minimum functional specifications, requiring manual input from the driver. of Transportation.’’ request comments regarding the costs Other commenters questioned the IIHS commented on FMCSA’s and benefits of compliant EOBRs, and prospect of potential cost savings from methods of gathering information rather consider a general EOBR mandate only automated recordkeeping, the potential than on its choice of research criteria. after performing a more precise and for improving motor carrier HOS IIHS thought FMCSA should conduct a comprehensive benefit-cost analysis. compliance and FMCSA’s oversight field operational test of EOBR devices Overnite Transportation stressed the activities, and the relationship between and conduct formal surveys to gather need for additional input from the HOS compliance and highway crashes. data on EOBR benefits, costs, and use in motor carrier industry and the law Both drivers and motor carriers HOS enforcement. enforcement community. Motor carriers also suggested expressed concern about the potential Werner asserted that many motor additional research factors. J.B. Hunt for ‘‘scope creep’’—the potential use of carriers have reviewed its system and suggested ease of use, restrictions on use EOBRs to collect data unrelated to HOS expressed an interest in implementing a while a vehicle is in motion (for solo compliance for use in enforcement and similar system, but are unwilling to operations only), driver distraction, and litigation actions likewise unrelated to move forward given the open status of device durability. Schneider HOS. the EOBR rulemaking. Werner recommended comparing the recommended that FMCSA assure motor B. Key Research Factors effectiveness of EOBRs, paper RODS, carriers that their systems (including As noted under EOBR Performance and existing compliance programs in ones similar to the Werner paperless Requirements, the ANPRM specifically reducing motor carrier crash rates. logging system) would still be requested comments on the seven key FedEx cited the ability of a device to considered acceptable alternatives to research factors initially discussed in produce documents for review at EOBRs should new rules be the April 2003 HOS final rule and in the roadside as a key technical requirement, implemented. Executive Summary of this preamble. and called on FMCSA to assess Commenters suggested a number of categories of motor carrier operations for Many commenters (chiefly additional research factors. For which an EOBR mandate would be individuals) expressed concerns about example, the Specialized Carriers and appropriate. other HOS compliance and motor Rigging Association (SCRA) and the One equipment vendor suggested carrier safety matters. These included Owner-Operator Independent Drivers researching EOBR physical durability excessive and unpaid delays at loading Association (OOIDA) stated that FMCSA and system architecture, including two- and unloading docks contributing to needs to gather data to establish way communications and GPS driver fatigue and unsafe driving, the whether a correlation exists between the capabilities. relationship between the HOS use of EOBRs (both § 395.15-compliant A number of commenters stated that regulations and driver pay, unsafe devices and other systems, such as that FMCSA needs to gather additional driving behavior by non-CMV drivers used by Werner) and improved truck information through discussions with contributing to highway crashes, safety. stakeholders. They believe this would inadequate training of new drivers, anti- The American Trucking Associations provide a better means of exchanging idling rules, and lack of legal truck (ATA) recommended FMCSA consider information with the Agency than .

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Agency Response stated that their products also support CMV. Greyhound, J.B. Hunt, Maverick, FMCSA agrees with many of the CMV location tracking via GPS or other and Schneider contended that commenters’ recommendations, which means. synchronization is essential, but also XATA, an EOBR vendor, asserted that are reflected in several elements of the noted EOBRs depend upon human integral synchronization is not only proposed rule. For example, we are input to record duty status accurately. more cost-effective than GPS and other proposing a performance standard J.B. Hunt supported concurrent use of technologies but provides EOBR concerning geographic location tracking GPS-enabled location tracking and manufacturers a standard interface recording. Schneider believes of the CMV as well as providing for method to ensure accurate tracking of interoperability between EOBRs and synchronization of EOBRs with vehicle vehicle motion and other operational electronics ‘‘would require significant support systems and compliance- data. Tripmaster stated ‘‘electronic assurance systems, as recommended by filtering to avoid data overload and engine control modules (ECM) are misleading results.’’ Schneider Advocates and other commenters. We calibrated during the manufacturing conferred with FHWA concerning suggested FMCSA request comments on process with the proper odometer pulse the new European Union (EU) digital Advocates’ recommendation on per mile value,’’ and that EOBRs interoperability of EOBR data and data , specifically concerning how connected to the ECM ‘‘are in effect self- it records CMV movement. Schneider retrieval. FHWA is not aware of any calibrated.’’ Tripmaster supported GPS ‘‘ITS America consensus protocols’’ in stated it is concerned FMCSA may be as an alternative distance measurement, considering use of handheld GPS existence. We intend to develop the rather than as the primary source of EOBR performance specifications in devices, a technology it does not such measurement. PeopleNet consider appropriate. ATA generally accordance with ITS America’s ‘‘ITS/ supported synchronization with the CVO [Intelligent Transportation Systems supported development of reliable data databus, using ECM data to determine parameters and standards. However, Commercial Vehicle Operations] travel distance and GPS to confirm Interoperability Guiding Principles’’ and ATA did not support revising the location. Qualcomm recommended that current regulations, as it believes the DOT’s Commercial Vehicle Information ‘‘integrally synchronized’’ refer to an Systems Network [CVISN] Architecture. problems cited in the ANPRM pertain to EOBR system in which at least one systems that do not comply with these In response to a recommendation by component is directly connected to the ATA, Schneider, Overnite, and others, rules. engine of the CMV in which it is The Santa Clara Valley Transportation we are providing a longer than normal installed, to enable the EOBR to collect public comment period for this proposal Authority, a public agency not subject to and record CMV functions as they the FMCSRs for most of its operations, to allow commenters ample time to occur. Siemens stated its experience in develop their responses and ensure opposed continuing the synchronization other countries is that most requirement. The transportation careful consideration of a cross-section falsifications are based on a tampered of opinion. The Agency believes this authority uses automated vehicle speed signal. It recommended tracking location and GPS capabilities and has deliberate approach, encompassing CMV speed through vehicle sensors incorporated HOS rules into the Santa extensive analysis of public comment combined with a GPS speed signal. Clara bus schedules. and the available research, is essential Darby Corporate Solutions believes an Advocacy organizations supported to provide the foundation for the EOBR should record only vehicle maintaining the synchronization ‘‘workable’’ rule to which IIHS referred. information, not duty status, which it In response to Werner Enterprise’s contended should be recorded by a requirement. IIHS asserted the most comment, we would continue to allow separate device. Karta Technologies important capability is the accurate Werner to operate under the exemption described how its vehicle-tracking recording of driving time, a feature most granted on September 21, 2004 (69 FR product could incorporate an EOBR of today’s systems provide. Citing 56474) for vehicles manufactured prior function. FMCSA’s past studies, Advocates and to 2 years after the effective date of an In contrast, three commenters, Public Citizen opposed GPS-only EOBR final rule. EOBRs installed in LinksPoint, Nextel, and CPS, supported systems and supported a combination of vehicles manufactured after that date a GPS-only system without integral GPS technology and recording of on- would be required to comply with synchronization to the CMV. LinksPoint board vehicle operating parameters. requirements under an EOBR final rule. asserted that a combination of driver- Law enforcement interests also reported status and GPS-sensed data supported the notion of an EOBR C. Comments on the Requested Subjects (such as vehicle motion) would permit providing a combination of location The Agency also requested comments an economical ‘‘semi-automated’’ and tracking and vehicle data. The on 15 subjects, denoted as A through O ‘‘minimally compliant device’’ approach Commercial Vehicle Safety Alliance in the ANPRM. The comments to those to HOS recording, and believes current (CVSA) cited a need for redundancy to subjects are addressed below. mobile computing technology would minimize errors and falsification. The allow for error checking to improve data (CHP) 1. Synchronization of Recorder to a accuracy and protect against fraud. CPS thought synchronization among Vehicle Operating Parameter contended the databus standards are multiple data sources and the EOBR is Commenters disagreed about whether ‘‘out-of-date and rely on input from vital to overcome the shortcomings of it is necessary to synchronize an EOBR engine sensors that may be inaccurate any one system. to the CMV to capture data necessary to and need regular calibration,’’ whereas One commenter stated that an EOBR establish a driver’s ‘‘on-duty, driving’’ a GPS-only system would be self- should record only data, should not be status. Seven of the 10 equipment and contained, stand-alone, and tamper programmed to ‘‘make assumptions’’ as systems providers commenting on this resistant. Nextel advocated integrated to duty status, and should record GPS topic believe that EOBRs should be GPS technology as more accurate and data continuously. Another commenter integrally synchronized to the CMV, providing near-real-time reporting. said an EOBR should record data from either directly to the engine control Motor carriers generally supported the vehicle databus in real time. The module (ECM) or via the vehicle’s retaining a requirement for integral International Foodservice Distributor electronic network (databus). Several synchronization of the EOBR with the Association opposed any rule requiring

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use of GPS and engine data to track HOS to test their devices thoroughly to time errors would render the records compliance. ensure they meet or exceed these meaningless. tolerances. Agency Response The International Brotherhood of The purpose of an AOBRD or EOBR 2. Amendment of Records Teamsters (IBT) stated that FMCSA should allow drivers to amend any is to accurately record a driver’s 2.1 Should FMCSA Revise Its sequence of duty statuses, the time the electronic record and add informational Definition of ‘‘Amend’’ in the remarks to note traffic conditions and driver is engaged in a given duty status Regulatory Guidance for § 395.15 To category, and the sequence of dates, indicate on-duty not-driving or off-duty Include or Exclude Certain Specific status. times, and locations that make up a trip. Activities? Historically, the only information CHP suggested FMCSA continue to available from a source not directly Nearly all commenters who addressed prohibit amendments of any controlled by the driver was the driving this question supported a regulatory permanently recorded entry or data time and distance, both of which were provision to allow drivers to amend or parameter, but allow comments obtained from a source on the vehicle. annotate in some way the duty status regarding entry omissions and Change-of-duty status locations had to records captured by an EOBR. However, inadvertent errors as ‘‘corrections’’ in be entered manually. In the 20 years commenters did not, for the most part, line with the current regulatory since AOBRDs were first used, directly address the question of whether guidance for 49 CFR 395.8, Question 8. communications and logistics FMCSA should revise its definition of CVSA supported this position. management technologies have evolved ‘‘amend’’ in the Regulatory Guidance. to enable a more fundamental item of Advocates stated that FMCSA should Several stated that drivers should have allow drivers to make separate information—vehicle location—to be the opportunity to amend on-duty not- tracked and recorded. The precision and annotations in certain circumstances, driving, off-duty, and sleeper-berth but should not allow alteration of any accuracy of this recording has come to status entries to ensure they are data captured by an EOBR. It opposed rival that of distance-and-time records accurate, while others opposed allowing the idea of allowing drivers to use the from the CMV. drivers to amend any driving time Remarks section to provide details of FMCSA believes it is appropriate to entries. A few opposed any provisions on-duty not-driving activities, reasoning offer an alternative, performance- for drivers to amend or annotate EOBR that certain drivers would misrepresent oriented approach that allows motor records. carriers and EOBR developers to take some on-duty not-driving time as off- advantage of emerging technologies. All motor carriers addressing this duty time. Advocates noted FMCSA did Specifically, FMCSA now believes that issue said FMCSA should allow drivers not include in the ANPRM any an EOBR does not necessarily have to be to make amendments or add remarks in discussion of how to accurately verify ‘‘integrally synchronized’’ with the some circumstances, although three work and rest time periods that an CMV to provide an accurate record of opposed allowing amendment of on- EOBR could not capture. duty driving time. J.B. Hunt driving time, equivalent to that of an Most of the vendors commenting on electronic odometer or the time function recommended against allowing this issue supported allowing drivers to contained in an ECM. The Agency is amendments of driving time entries, but make amendments or annotations to the proposing to allow two ways to record supported allowing drivers to add duty status recorded by an EOBR. For distance traveled and time: (1) Via information in a Remarks section. J.B. sources internal to the vehicle (i.e., the Hunt suggested employee drivers might example, PeopleNet stated that without ECM with an internal clock/calendar) to request their company to correct driving a process to allow drivers to amend derive distance traveled, or (2) via time errors, while independent owner- records, motor carrier personnel would sources external to the vehicle (i.e., operators might make these requests have to be available around the clock to location-reference systems—GPS, through a ‘‘compliance consortium’’ respond to drivers’ requests for terrestrial, or a combination of both) similar to those used to manage random annotations. It recommended requiring recording location of the CMV once per drug and alcohol audits. Maverick that drivers enter remarks describing the minute and using a synchronized clock/ Transportation recommended allowing reason for the amendment, requiring the calendar to derive distance traveled drivers to amend records and enter amendment to be visible to safety (‘‘electronic breadcrumbs’’). This explanatory remarks. officials and motor carrier back-office approach has the potential advantages recommended prohibiting modification staff, and prohibiting drivers from of removing a restrictive design of a record ‘‘if the truck is moving.’’ making amendments after the RODS has requirement, providing an opportunity ’ support for allowing been certified. Siemens and CPS for innovation, and allowing use of less amendments was based upon its opposed any alteration or annotation of expensive hardware (e.g., GPS-enabled contention that an EOBR cannot EOBR data. According to CPS, a system cell phones), without making existing distinguish between a vehicle idling in should provide function keys to allow synchronized devices obsolete. traffic (on-duty/driving) and idling at a the driver to record events. Other Regardless of the communications terminal (on-duty not-driving or off- vendors commented that drivers’ modes (wireless or terrestrial) and the duty). Greyhound also pointed to the annotations or entries in the Remarks method used to synchronize the time need to correct errors when a new driver section would provide adequate and CMV-operation information into an takes over a vehicle but the previous documentation of non-driving time electronic RODS, FMCSA would require driver has forgotten to log off. Werner activities, trips of short duration, the records from EOBRs to record duty Enterprises noted its current system circumstances when a CMV may be status information accurately. The explicitly measures only driving time, stopped in traffic upstream of a crash, difference proposed between actual with all other duty status entries use of a CMV as a personal conveyance, distance traveled and distance requiring driver input. Based upon its and other situations. However, Siemens computed via location-tracking methods experience in training thousands of believes permitting any modification of over a 24-hour period would be ±1 drivers, Werner contended that recorded data would encourage percent. EOBR developers would need prohibiting corrections of nondriving- falsifications.

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2.2 Should Drivers Be Allowed To IBT recommended allowing drivers to allowing drivers to check HOS records Amend the Duty Status Record if the amend the duty status record if the leads to improved efficiency. One System Maintains Both the Original and EOBR maintains both the original and opposed allowing EOBR users to erase Amended Records? amended record. However, like CHP or change any data from EOBR memory, As with their responses to the and CVSA, IBT was concerned this but proposed to allow amendments previous question, most of the approach could complicate compliance using preset entries from menus. commenters addressing this issue assurance processes. IBT contended a blanket prohibition All but one of the vendors addressing thought drivers should be allowed to against amending records would lead to this issue expressed qualified support amend the duty status record if the inaccurate records, which would be for allowing drivers to amend the RODS EOBR maintains both the original and contrary to the goal of mandating EOBR generated by an EOBR. XATA said amended records. However, several use. EOBRs could be designed to keep an Public Citizen, Advocates, and CVSA commenters opposed allowing drivers original and amended copy of records or this privilege, while others raised urged FMCSA to maintain its blanket a single copy with an audit trail of the prohibition against drivers amending questions without taking a stance. changes. Nevertheless, XATA Four of the five motor carrier records. Public Citizen stated that recommended FMCSA limit drivers’ commenters took an affirmative allowing manual entry of duty status amendment of records. LinksPoint and revision of records would position. Schneider believes such a echoed XATA’s comments, adding that provision would be necessary for an effectively undermine the purpose of an its system could flag instances when automated recorder. It believes EOBRs EOBR system to be workable, entered or amended data do not match particularly in instances of EOBR should be designed to eliminate any a vehicle’s GPS travel history. need to amend records or enter duty malfunction or misreadings. J.B. Hunt Tripmaster described an EOBR using favored allowing drivers to add on-duty status manually. GPS data to record location, vehicle CHP recommended against allowing not-driving time, requiring them to movement to determine the duty status request company approval to reduce drivers to amend records, but proposed of the driver (on-duty/driving or on- allowing annotation of the records with prior on-duty time entries, but not duty not-driving), driver input to allowing amendments of driving time. comments. CHP believed the motor distinguish on-duty from off-duty status, carrier should make the decision on Roehl Transport believes drivers should and an internal time clock to record the whether its drivers may amend EOBR not be allowed to amend their HOS time of each change in status. Provided records. records while in transit, contending that such a system were in place, Tripmaster Most of the equipment providers only a supervisory motor carrier official supported allowing a driver to alter favored allowing drivers to make should be allowed to amend a driver’s ‘‘clock in’’ and ‘‘clock out’’ time to amendments. XATA would allow a RODS. As noted under its response to correct legitimate errors. PeopleNet the previous question, Greyhound suggested FMCSA require drivers to driver to amend a RODS to revise off- supported allowing drivers to amend enter remarks describing the reason for duty time to on-duty. It stated that many records. Greyhound suggested that any change and to make any edits are not critical because motor drivers would have to review their amendments visible to law enforcement carriers using EOBRs audit and edit the electronic logs from fixed locations and through in-cab and back-office RODS to ensure accuracy. XATA said carriers would have to provide a reporting. It also reminded FMCSA that owner-operators would have to use a network of computer workstations. drivers must enter hours worked for a service provider to process the data or One owner-operator saw no need to non-motor-carrier entity as on-duty purchase supporting software to edit allow drivers to amend records, time. Qualcomm said that drivers and record changes. LinksPoint also contending that EOBRs should prompt should be able to correct non-driving recommended FMCSA remove the for an entry at each change in vehicle duty status as long as an audit trail is blanket prohibition on driver status. Another supported the idea of maintained, but only before a driver amendments, because it has required allowing amendments by drivers. certifies the correctness of the daily log. device providers to develop complex CHP and CVSA both recommended In contrast, CPS contended drivers and expensive systems and discouraged FMCSA consider a requirement for a should not be allowed to amend the carriers from adopting tracking permanent record of both original and duty status record. technology. Tripmaster and Qualcomm amended entries. They acknowledged, asked FMCSA to reconsider the however, that this could complicate 2.3 Should the Agency Maintain the prohibition. Qualcomm pointed out that enforcement because it would leave Blanket Prohibition Against Drivers’ since there is no way to automatically open the question of which version is Amending RODS Generated by an detect non-driving duty status, there accurate. AOBRD? would be no net safety benefit to Advocates supported allowing a As their comments to the previous imposing severe restrictions on drivers’ driver to enter addenda to an EOBR questions indicated, most carriers correcting their RODS. PeopleNet said record, but opposed the idea of EOBRs supported allowing drivers to amend or that this requirement would require recording ‘‘a separate version of the annotate non-driving duty status motor carriers to have safety managers RODS that has been manipulated by the records. on call around the clock to revise driver.’’ With regard to non-driving The few drivers who responded to records at a driver’s request. time, it had no objection to a driver’s this question were divided. One said Nextel recommended FMCSA using a ‘‘supplementary electronic that no one should be able to change the prohibit EOBRs that allow edits to be logbook’’ to enter non-driving work time data recorded by an EOBR, and that entered via the device. Nextel’s system, and non-driving rest or end-of-duty-tour drivers would soon become familiar based on a wireless handset, would time. However, Advocates stressed this with EOBRs and no longer need to allow authorized management to make supplementary logbook should be amend their entries. Another asserted edits in the main office system and matched against engine and GPS data FMCSA should remove the blanket transmit the edited record back to the for verification of compliance with the prohibition, but did not explain his handset in near-real-time. As it noted in HOS rules. position. A third driver commented that its responses to the other questions, CPS

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strongly believes that FMCSA should In response to Advocates’ concern performance specification at § 395.15 to maintain the prohibition. about verification of work and rest time allow drivers to amend a record periods, FMCSA refers to its immediately before and after a trip or Agency Response to Comments Supplemental Notice of Proposed work period. Drivers would be Concerning the Amendment of Records Rulemaking (SNPRM) on supporting permitted to annotate a record (such as Some of the comments suggest there documents (69 FR 63997, Nov. 3, 2004). by adding remarks), so long as the entry may be confusion regarding the terms In that document, FMCSA proposed to is time stamped and indicates who ‘‘edit,’’ ‘‘amend,’’ and ‘‘annotate.’’ (1) add definitions for the terms made it. The driver could make such an FMCSA does not intend to allow edits ‘‘supporting document,’’ ‘‘employee,’’ annotation only before submitting the or amendments that would erase duty and ‘‘driver’’ to § 395.2, and provide day’s record to the motor carrier. status records, delete an on-duty-driving examples of supporting documents; (2) 3. Duty Status Categories When the entry, or allow software-generated add new § 395.10 entitled ‘‘Systematic CMV Is Not Moving defaults to be used to mask on-duty verification and record retention’’; (3) driving or on-duty not-driving (ODND) modify the record retention If a Driver Is Away From a Parked CMV time. requirements in §§ 390.29 and 390.31; But Has Not Entered a Change in Duty One EOBR systems provider, and (4) clarify the motor carrier’s Status Immediately Upon Stopping the PeopleNet, contacted FMCSA in 2002 responsibility to monitor drivers’ Vehicle, How Might the Driver Correct requesting guidance on interpreting compliance with the HOS regulations the Entry? § 395.15(h)(2): ‘‘The driver must review and verify the accuracy of drivers’ Some commenters contended an RODS. Among other things, the SNPRM and verify that all entries are accurate EOBR should automatically switch to would explicitly require the motor prior to submission to the employing ODND status either immediately after or carrier to have a self-monitoring system motor carrier.’’ The vendor was shortly after a driver stops the vehicle. to verify the accuracy of the driver’s concerned that any alteration of data Others said that EOBRs should prompt entries for times and locations for each would be prohibited under § 395.15(i)(3) drivers to enter a change of duty status working day on each trip as well as the and suggested a ‘‘ship’s log’’ approach, when the driver stops the vehicle. A few accuracy of mileage for each trip. The in which the driver would make a asserted that a CMV should not start Agency anticipates publishing a final corrective entry and note the date, time, until the driver’s duty status is up-to- rule on supporting documents in the and location of the entry correction and date. As to correcting an erroneous near future. the reason it was being made. These record, some commenters believe the corrections would be flagged, and the FMCSA agrees with the commenters that to facilitate motor carrier review of driver should get management’s original record would not be modified. approval first, while others said drivers FMCSA agrees with this approach EOBR records, it will be necessary to clearly mark any revisions of duty status should be able to make the correction. because the original record would be entries as amendments. FMCSA would One owner-operator suggested the retained and the annotation would be continue to prohibit any amendment of EOBR should set the duty status to clearly delineated as such. This is on-duty driving status. Any annotation, ODND within a predetermined amount consistent with Question 2 of the including an entry in the Remarks of time after stopping the vehicle, and Regulatory Guidance for § 395.15, which section, would need to carry the date neither the driver nor the carrier should states, ‘‘No. 395.15(i)(3) requires and time the entry was made. This is be able to change that entry. Another automatic on-board recording devices, particularly important to flag suggested an EOBR system should to the maximum extent possible, be annotations made after the period of include an alarm linked to the parking tamperproof and preclude the alteration time described by the duty status entry. brake to remind the driver to record a of information collected concerning a FMCSA agrees with Advocates’ duty change. driver’s hours of service. If drivers, who comment about recording non-driving J.B. Hunt echoed the comment use automatic on-board recording duty status information, except that we recommending the EOBR default to devices, were allowed to amend their believe this information would be more ODND after a specified time. An record of duty status while in transit, appropriately included in the Remarks employee driver wishing to correct the legitimate amendments could not be section of an EOBR record than in a record would be required to get distinguished from falsifications ‘‘supplemental electronic logbook.’’ In management’s approval. In contrast, ***.’’ response to Greyhound, we note that Schneider did not think an EOBR For an AOBRD designed and operated drivers have many options available to should default to ODND if a driver fails in compliance with § 395.15, or an review their records without using to enter a change of duty status; instead, EOBR designed and operated to comply carrier-specific workstations sited at the driver should be given 30 minutes with proposed § 395.16, FMCSA would fixed locations. AOBRDs and other on- to correct the record retroactively. retain the prohibition against any board devices commonly record data Roehl Transport suggested allowing revision of on-duty driving records. locally—that is, on the device itself. If drivers to correct specific duty status Treatment of the electronic RODS a motor carrier adopted an operational errors, adding that the original and reflecting non-driving duty status model that required drivers to log in to revised records should both be retained entries is discussed under the section a central computer, use of contemporary and the motor carrier should note and concerning duty status categories. database software, communications, and approve them. Roehl believes, however, In response to CHP’s comment, we security protocols allows that drivers should not be allowed to note that the Agency’s Regulatory communication via any workstation change driving time. Another motor Guidance to § 395.15 describes a with access to the Internet. carrier, referencing the ‘‘driver’s own procedure whereby the driver would FMCSA agrees with Greyhound’s handwriting’’ provision of the current submit a revised RODS page marked concern about the need to correct errors regulation, remarked it would not be ‘‘Corrected Copy,’’ and the motor carrier when a new driver takes over the practical to have printers attached to would retain both the original and vehicle after the previous driver has EOBRs in long-haul or medium-haul corrected RODS pages. This would be forgotten to log off. We are therefore operations, and suggested drivers be similar to the ‘‘ship’s log’’ approach. proposing to require a revision to the allowed to make duty status changes

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electronically provided the EOBR the requirements to have the EOBR authorized access.’’ Public Citizen also maintains an audit trail. prompt the driver to enter information supported use of biometric technology IBT believes this question illustrates when it is apparent his or her duty such as fingerprint readers, and stated that EOBRs would still require driver status is changing (e.g., when the the driver should be required to log into input for duty status changes. IBT said vehicle is parked). FMCSA agrees with such a system before the CMV could be this continued reliance on driver input the latter approach, as reflected in this started. would not achieve the goal of proposed rule. Based on the comments CVSA said driver data must follow a eliminating fraudulent logbook entries, as well as on extensive research driver from vehicle to vehicle as well as the primary purpose of using an EOBR. findings, FMCSA recognizes that EOBRs be auditable and verifiable at roadside. CHP said EOBRs could be designed to can accurately measure driving time It stressed the value of redundancy, alert drivers if they inadvertently only when a CMV is moving. suggesting that various methods of omitted a manual duty status change. It FMCSA proposes that the ‘‘default’’ driver identification and verification also suggested EOBRs could be designed status for an EOBR be ODND when the could be used in combination. to prevent vehicle engine start-up unless vehicle is stationary (not moving and ABF Freight System, Inc., a less than all EOBR entries are current and the engine is off) for 15 minutes or truckload (LTL) carrier, uses a slip-seat permanently recorded. CHP would limit more. When the CMV is stationary and operation, in which drivers are not the time for correcting entries to the the driver is in a duty status other than assigned to specific power units. This time of the last recorded change of duty the ODND default setting, the driver approach is common among LTL status and require drivers to explain the would need to enter the duty status carriers. ABF currently uses a handset- oversight. CVSA expressed similar manually on the EOBR. type device providing time and location views. The proposed performance data in its pick-up and delivery Advocates opposed allowing an EOBR requirements of § 395.16 add a operations and asks FMCSA to consider to default to ODND, preferring a provision for automatically recording approving such portable EOBRs, which ‘‘standby’’ mode with no data entry. the location of the CMV. The Agency could be assigned to specific drivers Public Citizen also asserted ‘‘the Agency believes this proposed requirement instead of vehicles. A towing company must favor recorders that can accurately strikes an appropriate balance to also suggested a driver-oriented record non-driving duty status, rather improve the accuracy and reliability of approach, noting its drivers use two or than allow drivers to amend records.’’ ODND and off-duty information without three different vehicles per shift. U.S. As an example, it cited EOBRs that intruding unnecessarily upon the Telecom Association offered a similar signal when driver input is needed, privacy of the driver. comment. contending this would reduce the need Drivers would still be required to IBT and J.B. Hunt were among several for later revisions. record the location of duty status at each commenters noting the need for the According to XATA, most EOBRs change of duty status, as currently HOS record to follow drivers who currently in use allow the motor carrier required under §§ 395.8 and 395.15. operate several CMVs daily, work for to select a default duty status to be FMCSA does not propose to specify the more than one motor carrier, or operate entered if a driver steps away from a process (e.g., entering data via a as team drivers. J.B. Hunt asserted that parked CMV without entering a change keyboard or drop-down menus) for use of smart cards would be impractical in duty status. The EOBR could prompt accomplishing this but would leave the in an industry with high driver the driver for input when he returns for implementation to the EOBR turnover. Both commenters asserted that information on his status after the manufacturers. issuing drivers a standardized Federal vehicle is parked. LinksPoint’s comment identification card, such as the was similar: Although the system would 4. Ensuring Drivers Are Properly Transportation Workers Identification rely on driver input, it would still Identified Credential (TWIC) under consideration eliminate the ability of a driver to drive Many commenters discussed how by the Department of Homeland while another status is chosen. drivers could be properly identified. Security, would allow them to carry Qualcomm stated that the default Some favored using a password or PIN their data from motor carrier to motor duty status when a vehicle is not number for identification, while others carrier. This would also address the moving should be ODND. It asserted believe these methods would not needs of drivers who work part-time at that, under certain circumstances, adequately protect drivers against fraud multiple carriers. Of course, EOBR drivers should be able to make changes and falsification. Technologies manufacturers would need to ensure to any records of non-driving status advocated by commenters include smart their devices accept the standardized directly on the EOBR; the changes cards and biometrics, although some card and identification protocols. should be allowed only before were concerned that biometric J.B. Hunt said that, barring use of a certification of a daily log; and the technology would be too expensive or standardized card, PIN numbers would EOBR should maintain an audit trail of unreliable. be the next-best method of the original and edited data accessible The National Private Truck Council identification. Wireless communications to both the motor carrier and (NPTC) maintained that before requiring systems could validate the identity of enforcement officials. Siemens EOBRs, FMCSA must ensure the devices the driver against dispatch information. recommended EOBRs automatically will accurately identify drivers and be J.B. Hunt stated that biometric switch to ODND after a preset interval resistant to tampering. identification systems likely will be when the CMV is parked. In Siemens’ Advocates strongly recommended cost-prohibitive until they are generally experience, drivers quickly learn how to implementation of systems of codes or accepted in markets unrelated to switch their duty status to off-duty or computer activation: ‘‘No system of transportation. Schneider also sleeper berth when necessary. passwords or smart cards alone would commented that biometric technology deter and prevent attempts at would provide the greatest level of Agency Response unauthorized access and operation of a assurance about the driver’s identity but Many commenters’ statements reflect vehicle. Only unique bio-identifying noted it is significantly more expensive the current state-of-the-practice of HOS driver characteristics can provide than passwords or smart cards. A monitoring, while some would expand sufficient corroboration of identity for private citizen also favored use of

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biometrics for identification and as an In response to commenters who a graph-grid format. FMCSA recognizes antitheft device. suggested that FMCSA require use of the this requirement could be difficult to United Motorcoach Association Department of Homeland Security’s apply to some EOBR devices because of (UMA) claimed there would be no way proposed TWIC to identify the CMV the limited size or character density of to ensure the integrity of EOBR data, driver and possibly serve as a portable the displays. We intend to provide as including driver identification. UMA data record, FMCSA does not presently much flexibility as possible to EOBR cited the lack of a national standard anticipate using TWIC for EOBR HOS manufacturers by recognizing biometric identifier for the commercial data storage. There are several reasons alternative methods to enable display of driver’s license. It also contended that for this. While the amount of memory the information. smart cards would need to rely on required has yet to be specified, it is 5.2 Data Interchange Standards for driver identity verification at a much expected to be less than what would be Hardwired and Wireless higher level than has been implemented needed for an EOBR application. Communications to date. Greyhound also emphasized the Furthermore, FMCSA acknowledges criticality of properly identifying the several commenters’ concerns about Some commenters asserted that the driver. While supporting biometric driver and motor carrier privacy; some RS–232—the serial communication identifiers in principle, it was information contained on the TWIC standard required in § 395.15(b)(3)—is concerned about high costs. In addition, would not be relevant to an HOS record. outdated. Siemens, IBT, and others Greyhound opposed a system that noted that data communications would preclude a vehicle from 5. Reporting and Presentation (Display) Formats technologies, formats, and protocols are operating unless the driver were evolving rapidly. Several commenters identified, as it would hinder 5.1 Visual Record favored an open standard. For example, maintenance operations. Most comments on reporting formats the Minnesota Trucking Association CHP suggested using several methods recommended development of ‘‘an of data transfer and driver focused on visual displays available to drivers and roadside enforcement. open-architecture system that will allow identification, singly or in combination, transmittal of data between motor including smart cards, PIN numbers, Commenters favored standardized carrier, driver, law enforcement and and associated communications visual displays because they would various other accountable entities.’’ systems. CHP described a card capable make EOBRs easier for both drivers and Some commenters suggested avoiding of recording all pertinent data about the law enforcement officers to learn to use. the issue of data interchange with driver that would be inserted and Commenters generally supported a outside entities by requiring HOS removed from a reader installed in each potential requirement for a records to be uploaded to centralized vehicle. It also described a hypothetical ‘‘standardized’’ EOBR display showing file servers for query via the Internet or EOBR system using wireless the driver’s current duty status and also downloaded to the CMV for a safety communication methods to transfer data highlighting when noncompliance official’s review. and ‘‘biological positive driver occurred. Commenters also favored identification.’’ providing methods for enforcement Agency Response Vendors suggested various methods to officials to download archived HOS data identify drivers: Passwords or PINs, records. PeopleNet stated, ‘‘EOBR There is a need to set forth smart cards, and biometric technology. manufacturers, carriers, and law performance standards to support two Scanware commented on the difficulties enforcement should work together to types of communications: EOBR-to- of designing EOBRs to handle team- develop a user-friendly reporting motor-carrier and EOBR-to-roadside- driving situations. standards for all parties using or enforcement-official support systems. reviewing EOBRs.’’ CVSA asserted that FMCSA proposes an ASCII, comma- Agency Response ‘‘* * * standardized screen-based delimited, flat-file format for the EOBR FMCSA recognizes the diversity of digital displays should be readily data output record, and multiple motor carrier operations and accessible from inside or outside the industry-standard hardwired and acknowledges commenters’ concerns vehicle, and should provide summary wireless communications protocols. The about the potential costs of advanced and complete information upon technical specifications for the data files driver identification methods such as demand.’’ would be provided in a new Appendix biometric identifiers and smart cards. A to Part 395. Agency Response Various approaches to identification 6. Audit Trail/Event Log currently exist, while others are being There may be a fine line between developed, and carriers may have allowing flexibility in complying with a Commenters generally agreed on the different needs and standards regarding performance specification and requiring necessity for maintaining an audit trail. an acceptable level of risk. Rather than safety officials to be proficient in Some commenters recommended using limiting carriers’ ability to adopt understanding many types of displays. location data (GPS or other) to compare technically advanced systems or The fundamental need is to provide a against the EOBR data, but others imposing duplicative requirements on clear record of the sequence and thought this would be cost-prohibitive. carriers desiring more secure systems, progression of duty status. A few suggested a requirement for a FMCSA proposes to adopt a general Although the majority of the proposed ‘‘smart chip’’ in a driver’s ID card or requirement that driver identification be provisions are performance based, license as one way to provide an part of the EOBR record, without FMCSA must consider the needs of auditable record that would verify the prescribing a specific approach. An people who will review duty status identity of the driver operating the EOBR would require the driver to enter records and who are accustomed to CMV. Some commenters raised self-identifying information (e.g., user working with the traditional graph-grid concerns about tradeoffs between ID and password, PIN numbers) or to format. Both to address drivers’ allowing use of lower cost provide other identifying information concerns and allay concerns that EOBRs communications modes and adequately (e.g., smart card, biometrics) when he or could be difficult to monitor, FMCSA monitoring the systems and the data and she logs on to the EOBR system. proposes a visual output file providing information they contain.

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PeopleNet and Qualcomm As discussed earlier in this document, routing software packages. One industry recommended the audit trail be FMCSA proposes requiring drivers to group expressed concerns about costs to maintained at a central office rather enter identifying information but will small motor carriers. than onboard the vehicle. not specify the use of a particular Agency Response In response to the ANPRM question technology (such as removable smart about the system providing a gateway cards or biometric identifiers). In keeping with our performance- for electronic or satellite polling of With regard to a ‘‘gateway’’ for based approach to this rulemaking, CMVs in operation, four commenters satellite polling of CMVs in operation, FMCSA proposes that EOBRs be opposed such polling while one carrier FMCSA would require that the HOS required to provide output data in a file inquired what the interval between information be available immediately format described in an appendix to the pollings would be. upon request by a roadside safety proposed regulation (new Appendix A Commenters supported continuing official. Under FMCSA’s standard to Part 395). We will not propose a the requirement to use a RODS if an operating procedures, those records requirement for compatibility with EOBR is not functioning. One would also need to be made available specific third-party software. commenter suggested a maximum time upon request by a safety official 8. Verification of Proper Operation limit of 14 days. performing a CR, safety audit, or safety investigation. We propose to require the Agency Response Many commenters supported a system records to be as accurate as those requirement for EOBRs to perform self- FMCSA proposes a general from systems that are integrally tests and internal monitoring and to requirement for auditability based upon synchronized with the CMV’s notify drivers, dispatchers, and roadside the text of Section F of the ANPRM operations. Specifically, EOBR data for enforcement officials of device failures. preamble (69 FR 53386 at 53392, Sept. CMV location would need to provide an IBT stated that a system ‘‘must maintain 1, 2004): auditable record of the vehicle’s a record of and report out all location within +/¥1 percent distance An audit trail must reflect the driver’s malfunctions, calibrations, and be activities while on duty and tie them to the accuracy on a daily basis. capable of performing self-tests on specific CMV(s) the driver operated. Its 7. Ability To Interface With Third-Party demand.’’ CPS considered this feature design must balance privacy considerations Software for Compliance Verification unnecessary. with the need for a verifiable record. The Several commenters asserted that audit trail should automatically record a Several commenters noted the number of events, including (1) Any potential benefits and limitations of drivers should be able to verify EOBR authorized or unauthorized modifications to using third-party systems. Although operation and suggested various the duty status records, such as duty status third-party systems could provide an methods. ATA pointed out that drivers, category, dates, times, or locations, and (2) extra layer of compliance verification, supervisors, or safety officials could any ‘‘down’’ period (e.g., one caused by the the variety of systems on the market and require different levels of verification. onset of device malfunction). In addition, the their limited current usage by small Qualcomm suggested that determination system should provide a gateway for motor carriers could present obstacles. of system failure should not be electronic or satellite polling of CMVs in These commenters recommended restricted to on-board data. In contrast, operation, or for reviewing electronic records Roehl suggested the EOBR should already downloaded into a central system. FMCSA adopt a standard method and This capability would permit reviewers to format for data transfer, such as generate an electronic audit on demand, obtain a detailed set of records to verify time Extensible Markup Language (XML). with past records made available by the and location data for a particular CMV. The Most vendor commenters said that motor carrier. Siemens suggested that an presentation should include audit trail third-party compliance verification EOBR be required to display the results markers to alert safety officials, and software would not be necessary for of its last calibration check. PeopleNet personnel in the motor carrier’s safety EOBR systems, particularly if vehicle said an EOBR should provide a current department, to records that have been location information were derived from duty status summary, as well as a modified. The markers would be analogous GPS data. Qualcomm noted, ‘‘Currently summary of the last certified 7, 8, or 14 to margin notes and use highlighted code. available third-party compliance tools days’ worth of records. FMCSA would continue to focus on a audit the driver’s RODS [paper record] Agency Response performance-based regulation, while by using supporting document providing guidance to develop workable information * * * such as fuel and toll FMCSA believes that having a current and verifiable record generation and receipts and miles driven.’’ Motor picture of the operational status of an recordkeeping systems. Regardless of carriers reported mixed experience with EOBR will increase the confidence of the communications modalities third-party software. Two respondents drivers, motor carriers, and safety (satellite or terrestrial) and the method have developed their own systems for officials that the device is performing used to synchronize the time and CMV- compliance verification; others cited properly. Therefore, the NPRM includes operation information into an electronic lack of an available interface with a requirement for EOBR self-tests and RODS, we would require EOBR records current auditing software and concerns recording of successful and to record duty status information about the accuracy of ‘‘point-to-point’’ unsuccessful results. The CMV driver or accurately and to maintain the integrity software. Qualcomm urged FMCSA to motor carrier official would be required of that information. establish performance standards for to initiate a power-on self-test at the This NPRM includes a requirement EOBR-collected data. CVSA request of a motor carrier safety official. that EOBR records—both original recommended the Agency develop a FMCSA also would require motor entries and any revisions—be viewable. self-certification program for third-party carriers to obtain and retain records of The viewable record would encompass vendors. EOBR initial calibration, as well as any any modifications from the original Several commenters, in contrast to recalibrations necessary after EOBR entries, the identities of people who their responses to the previous question, repair or after any CMV repair that entered and amended data, and the date indicated carriers have used third-party could affect the recording of distance and time the original entries and any software for HOS review and auditing or traveled. We would anticipate amendments were made. have experience with dispatch and conducting detailed audits of EOBR or

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support system performance during CRs presents proprietary concerns, add being able to supply customers with a rather than at roadside. costs, and provides limited value certification number to prove FMCSA intends to require motor added.’’ compliance, and carriers could be held carriers subject to an EOBR remedial Advocates preferred a Federal role: accountable for using nonconforming directive to accomplish timely repair or ‘‘Without either direct Federal products. A motor carrier suggested replacement of a malfunctioning EOBR, certification or Federal criteria for developing two lists, one for CMVs without placing the driver in an accepting certification affidavits, the equipped with an ECM and the other for untenable position. Consistent with Federal government has no way of CMVs without electronics. However, a FMCSA’s proposed requirement for the securing threshold manufacturer few commenters thought FMCSA CMV driver to submit records no more compliance.’’ Tripmaster favored should not be relied upon to provide a than 13 days after completion, and the FMCSA certification, provided the list of certified devices because of the continuing requirement that the driver appropriate staffing and funding costs and the likely delay. have a supply of blank paper RODS resources were available. A motor forms to record duty status and related carrier also stated FMCSA should be 9.4 Should FMCSA Adopt the EU information for the duration of the responsible for certification. A driver Electronic Tachograph Design current trip, we would require a contended that any third-party Specification? malfunctioning EOBR to be repaired or involvement could lead to fraud. Most commenters stated that adopting replaced within 14 calendar days. Several commenters recommended the EU design specifications would be Drivers would be required to keep that independent laboratories conduct too complex and costly. These handwritten RODS until the EOBR is testing for manufacturers, noting the commenters argued instead for repaired or replaced. Carriers using extensive use of third-party assurance performance requirements in tandem EOBRs voluntarily would likewise be systems in other settings. Others with market-driven flexibility in EOBR required to maintain paper RODS expressed no preference for the type of design and delivery. A few commenters during any period an EOBR is entity performing the testing, but asserted adopting the design malfunctioning, but would not be emphasized it must be done before an specifications would not be subject to the 14-day time limit within EOBR enters the marketplace. ATA prohibitively costly, but offered no which to accomplish repair or pointed out that the appropriate entity rationale for that conclusion. ATA replacement of the EOBR. to conduct the test ‘‘is dependent upon recognized the fundamental differences what is required to be certified.’’ between the EU design-oriented 9. Testing and Certification Procedures standard and a performance-based Most commenters, except 9.2 Should FMCSA Continue To standard, noting that the former would manufacturers, favored certification by Allow Manufacturer Self-Certification? add significant text to the FMCSRs. J.B. FMCSA. Most manufacturers believe Some commenters opposed Hunt suggested FMCSA consider FMCSA should continue to allow continuing the status quo, citing drivers’ methods to ‘‘improve uniformity and manufacturers to self-certify their heavy reliance on the devices and the portability of carrier support EOBRs and support systems. The few burden on carriers associated with technology, including calibration and comments on maintaining a list of determining which systems comply diagnostics. This would permit carriers certified products generally opposed with the regulations. As Tripmaster to operate a mixed fleet of EOBR units such a list because of concerns it could explained, ‘‘The current system of self- without being required to have discourage the introduction of new certification is open to interpretation redundant proprietary diagnostic and products. Generally, the EU database and dishonesty and pushes the calibration equipment and thus should specification received low marks from responsibility of determining a system’s increase competition in the EOBR commenters. compliance on to roadside inspectors, market and reduce costs.’’ It believes Siemens said, ‘‘There is a basic auditors, and carriers.’’ J.B. Hunt added specific aspects of the EU regulations, difference in the attitude of transport that carriers ‘‘should not be placed in a among them calibration, diagnostics, companies towards on-board-computers ‘buyers beware’’ situation when making and testing, could provide guidance to (OBC) used for fleet management and such a large investment.’’ PeopleNet FMCSA in developing its EOBR EOBRs designed to record personal stated it self-certifies but works closely regulations. IBT believes FMCSA should activities of drivers as basis for with FMCSA to ensure regulatory discontinue reliance on performance enforcement officers to verify compliance. Some commenters would standards and establish detailed compliance with hours of duty favor self-certification if FMCSA specifications similar to the EU regulation: OBCs are likely to be treated imposed requirements on manufacturers specifications. carefully whereas EOBRs are more and either verified the manufacturer’s Agency Response likely to be subject to tampering.’’ compliance or conducted spot checks. Nextel advised FMCSA to consider a ATA asked whether FMCSA had FMCSA proposes to continue the requirement for hardware and software concerns based on the experience of requirement for manufacturers to self- to be designed and tested in accordance other self-certification programs. certify AOBRDs and EOBRs. The with existing protocols. Other commenters favored continuing alternative would be to have an self-certification. They believe this independent entity certify each EOBR as 9.1 Who Should Perform Certification would keep the process manageable and well as any support systems. Based on Tests? that manufacturers are in the best the Agency’s experience in developing Many commenters favored having position to develop compliance tests. procedures for device self-certification FMCSA establish criteria, with testing (‘‘Guidelines for Development of conducted by FMCSA in conjunction 9.3 Should FMCSA Develop a List of Functional Specifications for with CVSA, NHTSA, or other parties. Approved Devices? Performance-Based Brake Testers Used Others preferred manufacturer self- Many commenters favored this to Inspect Commercial Motor Vehicles’’ certification. CVSA stated, concept, especially if patterned after [65 FR 48799, Aug. 9, 2000]), as well as ‘‘Governmental or third-party NHTSA’s Conforming Products List. our knowledge of the challenges faced verification and certification of EOBRs EOBR manufacturers would benefit by by the European Union in developing

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and implementing its type-certification Agency’s requirements. Although such a solid-state electronic devices would not program for the new digital tachograph, list could potentially be useful for need recalibration. we believe this alternative would be far informational purposes, it also would 10.2 Documentation for Installation, too costly, burdensome, and time- need to be continually updated to reflect Repair, and Recalibration consuming for FMCSA. accurately the latest makes and models FMCSA and its predecessor agencies of EOBR devices and systems. The Most commenters agreed installation, have the benefit of approximately 20 creation and upkeep of such a list repair, and recalibration activities years’ experience with AOBRDs and would lie outside the Agency’s expertise should be documented, and that alternative methods for recording and and require the expenditure of FMCSA should have access to those reporting HOS information. Although significant resources. facilities and documents. However, FMCSA receives notice of deficiencies opinions differed on who should with certain AOBRDs, we address these 10. EOBR Maintenance and Repair maintain the records. Several on a case-by-case basis and reach Because several questions under this commenters believe the documentation satisfactory resolution with the device heading were similar, they are should be maintained by the technician manufacturers. summarized for brevity. Most performing the work, while others We believe prospective EOBR users commenters responding to the first two consider the motor carrier responsible. would be motivated to demand that the questions, concerning automatic capture TCA was concerned about calibration devices record duty status information of malfunction event data in EOBR and performance standards for EOBRs; accurately. Many EOBR manufacturers memory, asserted that all, or nearly all, who would be responsible for EOBR contact FMCSA for assistance in malfunction events could be captured in calibration; and whether the driver or understanding the HOS regulations. EOBR memory. IBT supported making the motor carrier would be cited if an Some have requested, and received, malfunction data accessible to EOBR were found to be out of formal regulatory guidance concerning enforcement personnel. Most calibration. new features to ensure compliance commenters thought EOBRs should Agency Response while reducing the need to enter have minimal maintenance The comments suggest that the information into the devices—for requirements. example, the use of location-description current requirements for maintenance algorithms in place of a location code 10.1 Are Current Maintenance and and recalibration of the devices in sheet. Drivers, carriers, stakeholders, Calibration Regulations Adequate? accordance with the manufacturer’s and citizens are quick to inform FMCSA specifications are producing the desired The United Motorcoach Association about any motor carrier’s attempts to outcomes. As noted in the Agency was concerned EOBR repair obtain an economic advantage through response to comments on testing and requirements could disrupt passenger collection of fraudulent HOS records. certification procedures, we generally service. Tripmaster stated the current We take these complaints very seriously do not interact directly with EOBR regulations concerning EOBR/AOBRD and address them through timely CRs. manufacturers or system providers In sum, FMCSA considers it maintenance and calibration are unless potential noncompliance appropriate to continue its requirement sufficient because they require situations are brought to FMCSA’s for AOBRD/EOBR self-certification. This maintenance and calibration according attention. Additionally, Agency NPRM proposes the EOBR performance to manufacturer’s specifications, adding resources would not permit criteria that manufacturers would that EOBR maintenance should be development of a comprehensive follow. We would continue to require performed in the same manner as any oversight program on EOBR repair manufacturers to perform tests to ensure other safety system on a CMV. Other facilities, nor does FMCSA have the their EOBRs and support systems commenters agreed, asserting that the legislative authority to undertake such a comply with these criteria. manufacturer should be responsible for program. We propose this approach for three EOBR compliance. Some supported a In response to commenters’ assertions reasons. First, it makes the EOBR requirement for work to be performed that nearly all malfunctions could be manufacturer—which has the most by an approved source, but there were captured in EOBR memory, FMCSA knowledge about its hardware and differences of opinion as to whether notes that although a sudden loss of software design—responsible for repair stations should be certified by power might not be recordable as an compliance with the Agency’s FMCSA, the manufacturer, or both. ‘‘event,’’ the data on the EOBR record performance criteria. Second, it PeopleNet recommended that certified should be self-explanatory. responds to the overall excellent history vendors and carriers continue to have In response to comments on of AOBRD/EOBR compliance with the ability to repair units independently maintenance and recalibration records, FMCSA requirements. Third, it allows of Agency oversight. Advocates said that FMCSA would treat those records much FMCSA to devote its compliance- FMCSA and NHTSA need to monitor like other vehicle repair and assurance resources to those rare EOBR repair facilities ‘‘to ensure that maintenance records. The motor carrier situations in which motor carriers or repairs are being done properly and to would be responsible for maintaining its drivers misuse EOBRs or the records detect any fraudulent manipulation of EOBRs. In answer to TCA’s comment, they generate. Based on our 20-year EOBR recordation capabilities and the the imposition of a penalty or fine history of working with AOBRD/EOBR accuracy of captured data. Such would depend upon the specific manufacturers and motor carriers using oversight can be based on a system of circumstances of the violation. these devices, we believe a more self-certification coupled with Agency Finally, as noted in the Agency complex, comprehensive, and costly random inspections of facilities * * *.’’ response to comments on verification of certification program could be Commenters disagreed on the need for proper operation, FMCSA proposes to marginally more effective, but at a recalibration. Siemens pointed out that require that malfunctioning EOBRs used disproportionately higher cost. certain changes in vehicle parameters, by carriers subject to the proposed Finally, we would not maintain a list such as different tire sizes, motors, or Remedies provisions be repaired or of devices self-certified by gearboxes, could require EOBR replaced within 14 days. During the manufacturers as complying with the recalibration. CPS maintained that time an EOBR is not functioning and a

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spare device is not available, the Agency select duty status and enter information needed for HOS compliance assurance. would continue to require preparation in a Remarks section, calculate HOS, ATA favored uniform minimum of a paper RODS. The latter requirement and wirelessly transfer the driver’s HOS performance standards: A ‘‘basic’’ EOBR would also apply to carriers using back to a server. should not require GPS or wireless EOBRs voluntarily. Qualcomm contended the regulatory technologies, but FMCSA should Therefore, FMCSA proposes to apply standards for EOBRs should be no consider offering incentives for their the provisions of the current AOBRD stricter than those for paper records in adoption. regulation, both by requiring EOBRs to terms of driver identification, ability to IIHS favored a relatively simple record malfunction events and by correct records, and data accuracy. system providing features for driver requiring recalibration and repair. We Qualcomm recommended that EOBR identification and accurate recording of would clarify that the motor carrier is records be made accessible to the driving time and other duty status responsible for producing maintenance dispatcher to ensure data integrity, categories, but without additional records (whether prepared by the motor prevent tampering, and permit safety vehicle performance monitoring carrier or a third party) upon demand. management oversight. The company functions. In addition to its See proposed §§ 385.511(c) and also recommended that the EOBR notify recommendation to add several items to 395.16(p). the driver and dispatcher of any the ‘‘key research factors,’’ Advocates potential HOS violation. It viewed a stressed the need for interoperability of 11. Development of ‘‘Basic’’ EOBRs To minimally compliant EOBR as possibly data acquisition and retrieval in Promote Increased Carrier Acceptance combining several pieces of equipment accordance with ITS protocols, as well Commenters were divided over (e.g., a black box synchronized to the as the need to include geographic whether FMCSA should develop engine plus a GPS-enabled phone). The position information as a component of specifications for a single type of EOBR synchronized system would use engine EOBR data. Similarly, Public Citizen or a family of EOBRs ranging from on/off to record the beginning and end stated that a minimally compliant EOBR minimally compliant to more of driving time. Qualcomm reasoned must record CMV engine status and sophisticated devices. Commenters that carriers and drivers would be more location data. favoring a single standard, among them open to the electronic recording of HOS Werner Enterprises contended CPS, argued that a provision allowing if they could simply add an application FMCSA should focus its requirements the use of ‘‘basic’’ EOBRs by certain to their existing mobile communications on the recording of data and information categories of carriers could provide system, and cited one of its products as required for the RODS, and not extend these carriers with a competitive an example. them beyond what is needed for HOS advantage. Others supported a more XATA and Siemens recommended compliance assurance. FedEx agreed inclusive approach under which that the FMCSRs require a ‘‘basic’’ that an EOBR requirement should FMCSA would issue FMCSR EOBR, with the Agency providing address only the basic and specific specifications for a minimally compliant incentives for motor carriers electing to requirements of the HOS rules. Overnite EOBR yet allow or encourage use of add features. As examples, carriers favored technology to allow automatic devices with more advanced using GPS-enabled EOBRs would not be data capture when a CMV passes capabilities, such as GPS and wireless required to carry location codebooks, through a weigh station. Roehl communications. while carriers using EOBR systems with supported a requirement for a Opinions on potential requirements wireless communications capability minimally compliant EOBR to deliver for minimally compliant EOBRs might be exempted from requiring the electronic equivalent of an accurate generally focused less on recommended drivers to carry their RODS for the prior RODS, at a cost small motor carriers specifications than on what features to 7 days, since the data could be could afford. exclude. Three vendors, PeopleNet, downloaded from the motor carrier’s Schneider referred FMCSA to the Nextel, and LinksPoint, recommended home base. Siemens suggested that European digital tachograph that a ‘‘basic’’ EOBR not be integrated to EOBRs minimize manual inputs. It specification. At the same time, receive data from the CMV’s engine or recommended that a ‘‘basic’’ EOBR Schneider noted its considerable other systems. PeopleNet added that a record location of duty status changes as investment in communications and basic EOBR of this description would be longitude and latitude coordinates using operations management technology, and appropriate for CMVs not placing ECM a simple GPS module. Siemens held asserted that functional specifications data on their electronic networks. that the coordinates would provide must be compatible with existing Nextel and LinksPoint supported sufficient information for enforcement technologies or ‘‘reasonable extensions’’ running an HOS records application on officials without requiring translation to of existing technologies. a handheld computer or cellular named places (, towns, or villages) J.B. Hunt called for minimal EOBR handset. by the EOBR. requirements to balance safety outcomes Some commenters opposed potential TACS recommended that a ‘‘basic’’ and implementation costs. It considers requirements for location-tracking and EOBR system record the identity of the the following features necessary: wireless communications capabilities. driver, time of day, direction of travel, Synchronization with the vehicle, with Tripmaster favored specifications for vehicle location, speed, and driver noneditable drive time; connectivity for EOBRs to perform ‘‘the sole function of inputs regarding duty status. roadside officers; GPS for position automating HOS recording and SCRA stressed the need for EOBR locations; and self-diagnostics. J.B. reporting.’’ The company contended a stakeholders to work together to develop Hunt, Schneider, and other commenters requirement for two-way acceptable minimum standards and opposed the notion of different communications would be unwarranted uniform format. SCRA and ATA requirements for larger and smaller because of gaps in coverage, coupled advocated flexibility and motor carriers. with Tripmaster’s perception that local interoperability, cautioning against CVSA recommended that EOBR and regional fleets may have little need proprietary systems with potentially requirements be phased in over several for such communications. In contrast, higher costs. OOIDA was also concerned years to minimize impacts to both the PeopleNet favored systems that capture about EOBR costs, particularly if EOBRs motor carrier industry and safety location information, allow the driver to have uses or capabilities beyond what is officials. CHP contended performance

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requirements compatible with a range of requirements for EOBRs rather than that the data recorded on these systems, devices (minimally compliant to state- several sets of requirements for devices and the information derived from that of-the-practice) could be difficult to with varying degrees of sophistication data, relate to compliance with the HOS devise. It suggested retaining manual and complexity. These proposed regulations. The data requirements are records during a phase-in, while performance requirements reflect what therefore limited, and the technological recognizing that this could be costly. FMCSA believes the EOBR development challenges to collecting, recording, and Finally, CHP stated that requiring community can currently provide to the retaining the data on the EOBR and EOBRs only on new CMVs would help marketplace at an affordable cost. support systems are generally well mitigate cost concerns. At the same time, FMCSA recognizes known to, and met by, many that many motor carriers have used, and manufacturers. With the exception of an 11.1 Performance-Based Specifications will continue to use, AOBRDs that meet vs. Detailed Functional Specifications advocacy organization’s suggestion to the definition at § 395.2 and comply use EOBRs for crash reconstruction, Commenters generally favored with the performance requirements of commenters did not recommend performance-based over design § 395.15. FMCSA proposes to allow expanding the scope of EOBR data specifications. Some noted FMCSA motor carriers to continue to use these collection. could set performance standards for devices in CMVs manufactured before In response to IIHS’s comment most features yet achieve a measure of the implementation date of this rule. concerning uniformity of data output uniformity by requiring standardized FMCSA encourages motor carriers to formats, FMCSA proposes to require a reporting or display formats. Overnite adopt newer versions of on-board specified data output file format to recommended FMCSA concentrate on recording devices, but at a pace that promote improved data interchange performance specifications and a avoids causing hardship either to between EOBRs and portable standard format for EOBR readout carriers or to device providers. FMCSA microcomputers used by roadside capabilities. ATA asserted FMCSA proposes to allow AOBRDs voluntarily enforcement officials. This is discussed could set performance requirements installed in CMVs manufactured up to in depth under Agency Proposal. through minor revisions to § 395.15 and 2 years after the effective date of a final recommended the Agency do so before rule to be used for the remainder of the 12. Definitions—Basic Requirements requiring EOBR use. TCA also service life of the CMVs in which they Most comments on the issue of supported performance standards, are installed. definitions concerned the ability of adding that they should be subject to As noted in the Agency response GPS-based products to meet the notice-and-comment rulemaking. under Key Research Factors, FMCSA requirements of the EOBR regulations. IIHS, in addition to its comment would continue to allow Werner to (mentioned previously under Key operate under the exemption granted on AOBRD Research Factors) that FMCSA has September 21, 2004 (69 FR 56474) for CHP, Tripmaster, Nextel, and ATA enough information to craft a workable vehicles manufactured prior to 2 years agreed with the definition. PeopleNet mandate, stated that FMCSA is not after the effective date of an EOBR final pointed out that older CMVs (those required to design a system and has not rule. Vehicles manufactured after that manufactured before the advent of explained why a performance-based date would be required to comply with electronically controlled engines) would system would be problematic for the new requirements for EOBRs. require costlier AOBRDs because the enforcement. It recommended FMCSA Because the Agency is not proposing to earlier engines do not broadcast engine incorporate a design component into the require integral synchronization of the use, road speed, or miles driven over the overall system requirements and specify EOBR with the CMV engine, Werner’s CMV’s electronic network. Qualcomm a uniform method of accessing the data system would likely meet the proposed contended that the key requirement and a uniform output record. requirements either in full or with should center around the ability of an Qualcomm and PeopleNet reasoned minor modifications. AOBRD to detect the movement of a that design specifications, as opposed to In proposing under § 395.16 a single CMV and use that information to performance standards, would limit set of performance-based EOBR capture driving time. innovation, reduce competition among specifications, as opposed to different suppliers, and hinder motor carriers’ specifications for EOBRs with varying EOBR adoption of new features. Qualcomm levels of functionality and using Several commenters agreed with the stated that FMCSA could achieve different communications methods, definition. However, Advocates would uniformity via standardized reporting or FMCSA is focusing the proposed rule on support only a performance display formats of RODS, and the accuracy of records of duty status specification requiring GPS. CHP and recommended that determination of rather than on the methods used to CVSA recommended adding an explicit system failure be based on a collect, store, and report the data. requirement that EOBRs record drivers’ performance standard. Finally, a motor FMCSA’s preference is to allow duty status and HOS information. They carrier stressed the need to establish flexibility in how HOS data are also recommended a requirement for standards to ensure interoperability. collected and information is derived, so information attributable to a single long as the data accurately reflect the driver. In contrast, the American Agency Response driver’s sequence of duty status periods Moving and Storage Association and As noted in the section titled and the CMV’s location at each change Darby Corporate Solutions pointed out Reporting and Presentation (Display) of duty status. Emerging technologies that an EOBR cannot identify a specific Formats, the fundamental need is to may well allow this information to be driver or distinguish whether a driver is provide a clear record of the sequence collected in ways not envisioned today, off duty or on duty, and they believe the and progression of duty status. or improve the efficiency, accuracy, and definition should more accurately FMCSA’s review of the docket cost-effectiveness of gathering and reflect these limitations. IIHS suggested comments, as well as the March 2005 recording data. FMCSA consider adopting the EU Volpe Center study findings, suggest it In response to commenters who urged electronic tachograph regulation. would be appropriate to propose a that the scope of the current Qualcomm offered several suggestions single set of new performance requirement be revised, FMCSA notes for the definition. In its view, the

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definition should encompass the of using their products, but XATA noted EOBR system ‘‘an excellent way of EOBR’s ability to continuously monitor ‘‘it has been difficult for fleets to justify logging,’’ noting its integration with the and record CMV functions and to notify technology based on HOS compliance vehicle logistics system already in the driver and dispatcher of alone.’’ Siemens asserted that European place. malfunctions. Qualcomm believes the motor carriers’ experience with HOS CVSA and CHP cited a lack of data definition also should reflect that an recording has led not only to acceptance linking EOBRs and safety outcomes. EOBR has several components, but of conventional but also to CVSA requested that FMCSA consider a should not include a requirement to improved designs for ‘‘reduced pilot program to monitor EOBR- record engine status and road speed. possibilities of cheating the system.’’ equipped and non-EOBR-equipped One commenter thought FMCSA should According to Tripmaster, its customers’ vehicles to assess differences in expand the definition to allow an in-cab drivers saved 15 to 30 minutes per day compliance and safety performance. system of computers, scanners, and and believed the safety and compliance OOIDA contended research has failed printers. assurance benefits justified the EOBRs’ to show a statistically significant Various commenters asserted the cost. improvement in crash reductions as an definition should include references to The International Food Distributors outcome of EOBR use. OOIDA also cited date and time, engine on/off status, Association (IFDA) stated that its the 2002 Cambridge Systematics study location, distance traveled, and road members’ experience with AOBRDs sponsored by FMCSA, which noted the speed data. varied. Some found the devices to be inability of EOBRs to automatically excellent and consistent tools, while capture non-driving duty statuses. Agency Response others reported greater than anticipated In contrast, Public Citizen cited FMCSA has carefully examined the AOBRD failure rates. The National positive CMV crash rate data from need for EOBRs to capture operating or Ready Mixed Concrete Association Germany. In 1975, the year mechanical ‘‘road speed’’ data. Ensuring that drivers noted its members already employ tachographs were first mandated, the operate their CMVs within the posted ‘‘sophisticated electronic fleet injury crash rate for CMVs was one speed limits, while important, is outside monitoring equipment.’’ Moreover, as crash per 790,000 km traveled. Ten the scope of this rulemaking. EOBRs most of its members operate under the years later, the injury crash rate for (and AOBRDs) are intended to ensure 100-air-mile-radius provision and use CMVs had dropped 54 percent, while accurate information about duty status timecards rather than RODS, they would the injury crash rate for passenger cars time, rather than the speed at which a be unlikely to realize any new fell only 22 percent. These changes were CMV is operated. Furthermore, ‘‘driving compliance benefits from EOBRs. viewed as notable, even when one time’’ means all time spent at the OOIDA questioned the safety history considers that mechanical tachographs driving controls of a commercial motor of Werner during the first 4 years of the are ‘‘highly susceptible to tampering.’’ vehicle in operation. Drivers’ duty carrier’s GPS Technologies Pilot Siemens asserted EOBR-equivalent status includes all the time the driver is Program. OOIDA’s analysis of crash technology has been widely accepted in at the controls of the CMV, regardless of statistics (crashes per power unit per Europe and is perceived as effective for whether the CMV is moving or is year) for the period 1998–2002 for promoting road safety. Tripmaster also paused in heavy, slow-moving traffic. Werner and several other large noted its customers had experienced Therefore, FMCSA is not proposing that truckload motor carriers indicated an safety improvements; one tank carrier EOBRs record road speed. increase in Werner’s crashes relative to reduced its overall crash rates nearly 50 its peers. OOIDA wondered whether percent the first year it used an EOBR 13. Potential Benefits and Costs this diminished safety performance was system. Qualcomm reported that Only a few commenters based their related to the use of the HOS recording carriers using its system were able to responses on tangible experience using devices. monitor driving behavior and quickly EOBRs and support systems. Although Public Citizen cited several reports, take remedial action, in some cases some motor carriers noted benefits from some written under FHWA and FMCSA reducing liability insurance costs. sponsorship and included in the docket, the use of the devices, others considered Agency Response them too costly or questioned EOBRs’ suggesting benefits of EOBRs related to ability to capture the operations typical improved safety and HOS compliance. FMCSA recognizes that of their industry sector. comprehensive research data regarding 13.2 Driver HOS Violation Rates, Out- the safety benefits of EOBR deployment 13.1 Safety, Operational, and Of-Service Rates, and Crash Experience are sparse. However, many EOBR Compliance Benefits Experienced by of Motor Carriers Using AOBRDs or vendors and carriers, as noted earlier, Motor Carriers With Actual Use of EOBRs filed comments asserting that AOBRDs or EOBRs J.B. Hunt reported that its use of an deployment of EOBRs resulted in Werner Enterprises, which has piloted electronic monitoring system (which greater HOS compliance in addition to a GPS technology approach for HOS does not use AOBRDs) has helped the other benefits (e.g., economic efficiency monitoring, noted evidence of safety carrier achieve a driver out-of-service and security benefits). These comments improvements as measured by driver rate well below the national average. In are generally consistent with case out-of-service rates related to HOS contrast, another carrier that tested studies and other anecdotal information compliance. Its driver out-of-service rate EOBR technology saw no noticeable from both the United States and abroad is 1.2 percent, far lower than the improvement in safety outcomes. One showing improved HOS compliance national average of 6.8 percent. United driver for a carrier using electronic with EOBR deployment. As was Natural Foods noted both compliance RODS has noted a decline in crashes extensively analyzed in the regulatory and operational improvements since it and out-of-service orders. A Werner impact analysis for the 2003 and 2005 began using EOBRs in the CMVs based driver thought the EOBR system works HOS final rules, increased compliance at some of its facilities. well, keeping drivers in compliance and with HOS regulations correlates with EOBR vendors XATA and PeopleNet preventing dispatchers from asking reduced CMV driver fatigue, thereby noted that their customers see improved drivers to exceed HOS limits. An owner- reducing the incidence of CMV- HOS compliance as one of the benefits operator driving for Werner found the involved crashes.

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FMCSA considered the potential for sensitivity analysis in which we varied Other commenters, including EOBRs to reduce or eliminate specific the level of these potential efficiency advocacy organizations, contended that types of HOS violations, such as benefits to examine the effects on our EOBRs would reduce compliance costs exceeding daily driving time limits, benefit-cost analysis results. and generally pointed to improved exceeding daily duty limits, exceeding Based on a review of 2003 and 2004 carrier operational efficiency. Public weekly duty limits, false logs, ‘‘no log’’ HOS compliance rate information from Citizen noted many carriers already use violations, form and manner log the Agency’s Motor Carrier Management electronic scheduling and tracking violations, and non-current logs. We Information System (MCMIS), FMCSA systems, ‘‘making the additional HOS believe that carriers using EOBRs under concludes that mandated EOBR tracking function a relatively simple an FMCSA remedial directive would deployment has the potential to matter.’’ They cited studies of EOBR use significantly reduce, and in some cases significantly reduce or practically and discussed the positive responses of virtually eliminate, several types of HOS eliminate several of the specific HOS drivers, unions, and carriers in Europe violations including driving time violations noted previously, resulting in to EOBRs used there. IIHS cited several violations, form and manner violations, a 50 percent reduction in HOS-related FMCSA studies that discussed potential and false-log violations. Requiring violations for carriers using the devices. benefits of EOBR use. However, Public EOBR use by carriers with recurring This is supported by a qualitative Citizen criticized FMCSA’s failure to HOS violations could also reduce at analysis by FMCSA enforcement mention driver health in its ANPRM least a portion of these carriers’ ‘‘no log’’ personnel of HOS violations likely to be discussion of the benefits of EOBRs. and non-current-log violations. As eliminated as a result of implementing CVSA noted EOBRs ‘‘can do little to discussed in the 2003 and 2005 HOS EOBRs for HOS compliance. The reduce this risk [of HOS violations to final rules, these reductions in HOS assumption of a 50 percent reduction in highway safety] without rigorous violations would yield safety benefits HOS violations is further supported by monitoring by both law enforcement for CMV drivers and the traveling an FMCSA case-study analysis of a and the industry itself.’’ CVSA public. motor carrier in the Southeast that predicted larger carriers would tend to The Agency sponsored a 2004 study implemented EOBRs for HOS gain the greatest productivity benefits entitled ‘‘Hazardous Materials Safety compliance and experienced a 79 from EOBR use. Motor carriers and industry and Security Technology Field percent reduction over a 3-year period. Operational Test’’ 2 (HM FOT), which associations expressed greater We used the 50 percent-reduction skepticism regarding the benefits of examined the effectiveness of assumption in the benefits analysis of technological system solutions to EOBRs. As IFDA noted in its response the RIA for this proposed rule. However, to the previous question concerning enhance safety, security, and because of a lack of comprehensive data operational efficiency. This study found safety, operational, and compliance on EOBR safety benefits and the benefits experienced by motor carriers, that deploying particular types of qualitative nature of the assumption, technology, including EOBR-related its members reported mixed FMCSA subjected it to a sensitivity experiences. Yellow Freight was technology, potentially leads to analysis similar to that performed on the significant gains in operational concerned that a transition to a new estimated efficiency benefits in the HM system could adversely affect its current efficiency by reducing vehicle miles FOT. In the RIA sensitivity analysis, we high level of HOS compliance. traveled. By eliminating unnecessary varied the assumption concerning the Schneider believes the current cost of exposure to CMV highway traffic, this effects of EOBR deployment on EOBRs cannot be justified and noted its increased operational efficiency would compliance rates. That analysis is crash rate already compares favorably to improve safety and security. contained in the RIA, available in the the crash rates of motor carriers using In developing the Regulatory Impact docket. EOBRs. Werner cautioned that a basic Analysis (RIA) for this NPRM, the EOBR system might not achieve the Agency considered data submitted by 13.3 Cost Savings From Paperwork same level of benefits as its own several vendors and carriers Reduction, Reviewing RODS, and Other comprehensive system. Greyhound commenting on the ANPRM. However, Efficiencies expected that paper backup documents because the Agency was unable to PeopleNet, @Road, Tripmaster, and would still be required for EOBRs, and independently verify the analyses Qualcomm stated that their motor thus disagreed with FMCSA’s estimates conducted by these commenters, we did carrier customers enjoy significant of time savings associated with EOBR not use this information directly in our improvements in operational efficiency use. economic analysis. when they add communications and ATA, MFCA, and the American Bus In the case of the HM FOT, we did logistics modules to a basic EOBR Association (ABA) stated their members consider the potential efficiency gains system. Their customers see that have experimented with EOBRs from deployment of EOBR-related improvements in communicating timely have seen little or no savings in technology, and used this information information to drivers, automating fuel administrative costs. ATA indicated that when considering tertiary (non-safety) tax data collection, reviewing odometer motor carriers are currently using benefits of installation of EOBRs on readings and engine usage, and EOBRs for maintenance and fleet CMVs. Given the limited scope of the performing billing and payroll management, not HOS recording, and study, however, we evaluated only the functions. PeopleNet said its customers are deriving benefits from those findings related to efficiency benefits. attain a return on investment of 100 applications. ABA reported that its Additionally, because this was the only percent or more, often within the first EOBR-using members have had to invest study available to us that quantified year, and an aggregate savings in driver extra resources into double-checking estimates of the efficiency benefits of and back-office administrative staff time EOBR records and backup RODS. UMA EOBR technology, FMCSA undertook a ranging from 10–15 minutes per driver predicted carriers would continue to per month. CPS said that automation of maintain paper RODS, in tandem with 2 Hazardous Materials Safety and Security Technology Field Operational Test Final Report, recording and reporting industrywide EOBR records. November 11, 2004, http://www.fmcsadot.gov/ ‘‘can be provided without any increase OOIDA conjectured that drivers’ other Safety-Security/hazmat/fot/index.htm. to current costs.’’ tasks would absorb any time savings

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from completing electronic records and savings. Therefore, FMCSA believes it is deleterious effect on the physical condition that reconstructing RODS from a plausible to anticipate that carriers of the operators. malfunctioning EOBR would take a would experience cost savings from Our review revealed little scientific significant amount of time. Citing a reduced paperwork as well as other documentation regarding the health 1998 UMTRI study (Campbell and gains in operational efficiency. The effects on commercial motor vehicle Smith, ‘‘Electronic Recorder Study: potential savings would of course vary operators of monitoring driving time. Final Report,’’ 1998, page 37; see docket depending on the operational Overall, however, since we expect the entry FMCSA–2004–18940–7), OOIDA characteristics of the carrier and other proposal to increase compliance with stated there is no evidence EOBRs are factors. As discussed in the Incentives the HOS regulations, thereby reducing cost-effective in small fleets, and motor section below, FMCSA seeks comment fatigue, it would not have a deleterious carriers would not derive benefits from on whether paperwork savings and effect on the physical condition of any savings in drivers’ time if they pay operational efficiencies from EOBR use drivers. On the other hand, there is drivers by the mile. Several other also reduce driver fatigue or otherwise substantial literature regarding the commenters offered similar viewpoints. mitigate crash risk sufficiently to justify health effects of electronic monitoring of Specialized carrier services were affording motor carriers that use EOBRs workers, as well as on the general health especially skeptical about EOBR relief from some of the HOS rules. effects of operating commercial motor benefits. Petroleum Marketers In the RIA for this proposal, FMCSA vehicles. Association of America stated that estimated average cost savings to A review of the available literature because its members are already subject affected carriers based on reduced suggests that monitoring an employee is to close regulation, EOBRs are unlikely paperwork burden associated with likely to increase stress levels in certain to improve their compliance and would EOBR deployment. Our estimates for cases. Those cases appear to be limited offer no additional benefits. The North time savings were conservative. For to people who must work harder to meet Carolina Forestry Association asserted instance, it was assumed that time quantitative performance expectations that RODS falsification is ‘‘not the norm savings would equal 6.5 minutes saved as a result of being monitored. This may by any means,’’ and doubted EOBRs per day per driver, much lower than not apply to commercial motor vehicle would improve HOS compliance. The reported in several studies as well as by operators, who would be monitored to Colorado Ready Mixed Concrete commenters to the ANPRM. In contrast ensure compliance with safety Association stated EOBRs would have to OOIDA, the Agency believes that, for regulations. However, some functions of few benefits for its members because small carriers whose drivers are paid by EOBRs may enable fleet managers to most are currently exempt from RODS the mile, this reduced paperwork monitor the performance of their drivers under the 100-air-mile radius burden would indirectly benefit the as well as their compliance with hours- exemption, are already using advanced carrier by increasing net income. The of-service regulations and could technology, and are committed to HOS time savings would have a small therefore have similar effects to the compliance. tendency to increase the supply of studies described here. A November U.S. Telecom Association (USTA) drivers at any given rate of pay, or to 2005 report by ICF Consulting, said that because telecom drivers have reduce the pay needed to realize any ‘‘Literature Review of Non-Safety Health no motivation to violate the hours-of- given level of supply. See section 3.3 of Effects of Electronic On-Board service regulations, EOBRs would not the RIA for a general discussion. Recorders,’’ describes the range of benefit this industry sector. USTA noted We also used conservative estimates available literature. This study, which that utility service vehicle drivers are for cost savings from paper reduction we relied upon to assess the potential allowed to exceed HOS in situations of and paper storage. A third conservative direct health effects of monitoring a declared emergency. assumption incorporated into the RIA drivers’ duty status with EOBRs, is IBT was skeptical of any productivity by the Agency was that EOBR available in the docket. As noted in benefits from EOBR use. It echoed deployment would not produce back- Appendix A of the RIA for this NPRM, several other commenters in pointing to office savings, even though some the literature search found no material the need for a driver to interact with an carriers would in fact reap such savings. regarding the relationship between EOBR and to resort to paper RODS Details of the assumptions and cost driver health and the use of driving time should the device malfunction. savings analyses are available in the recorders, ‘‘or indeed between driver Agency Response RIA. health and any form of monitoring of In response to Public Citizen’s truck drivers.’’ There were, however, a Several studies have documented the few articles on the health effects— efficiency benefits of EOBR-related comment that the Agency’s ANPRM failed to analyze the benefits of EOBR particularly stress-induced effects—of technologies, including time savings being electronically monitored at work. from logbook recordkeeping. Most use for CMV driver health, it is notably, the previously mentioned HM important to note that we did conduct 13.4 Training for Drivers, Dispatchers, FOT discussed efficiency benefits in the such analysis for the current notice. and Other Motor Carrier Employees form of vehicle routing changes. The Specifically, FMCSA analyzed the United Natural Foods, an EOBR user, 1998 UMTRI Study, also mentioned NPRM to ensure its conformance with estimated that training required to use earlier, noted that ‘‘Electronic HOS the requirements of 49 U.S.C. 31136(a): EOBR and EOBR-generated records was records obviously offer administrative At a minimum, the regulations shall ensure 3 hours per driver and 3 days for office efficiencies through ease of access to that—(1) commercial motor vehicles are staff at $900 per day plus expenses; and management of these records.’’ This maintained, equipped, loaded, and operated Maverick, which also uses EOBRs, study found that carrier respondents to safely; (2) the responsibilities imposed on estimated 4 to 5 hours or an average of a survey cited ‘‘vehicle operating cost operators of commercial motor vehicles do $150 per person. Two motor carriers not not impair their ability to operate the management’’ as the most frequent vehicles safely; (3) the physical condition of currently using EOBRs, Schneider and reason carriers install EOBRs on their operators of commercial motor vehicles is Ralph Meyers Trucking, estimated vehicles. Additionally, numerous adequate to enable them to operate the training costs of $1,500,000 (Schneider commenters to the ANPRM docket vehicles safely; and (4) the operation of based its estimate on the costs of pointed to benefits from paperwork commercial motor vehicles does not have a retraining staff to comply with the April

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2003 HOS final rule; the company staff. CPS and Siemens said training Next, we calculated driver and back- believes the rulemaking would increase would be ‘‘minimal,’’ although Siemens office worker training costs ongoing training costs by $130,000) and advised that dispatchers may need corresponding with the type of unit to $165 per hour (Ralph Meyers Trucking’s ‘‘some hours’’ of software training. be installed (high, median, or low estimate for the cost of training, Tripmaster estimated 1 hour for driver estimate); this information was supplied maintenance, and support). training and 16 hours or more for by vendors or carriers in comments ATA estimated 21⁄2 to 3 hours per supervisor training. submitted to the docket or gathered driver for EOBR training, plus from production information in additional training on completing paper Agency Response manufacturers’ sales or marketing RODS if they were required as backup FMCSA received an abundance of packets. In the case of the high estimate documents. UMA estimated total costs information regarding training costs (integrally synchronized units), driver of $6.4 million for motorcoach carriers, associated with EOBR deployment, from training was assumed to take 3 hours assuming a fleet size of 40,000 vehicles. per driver, while back-office worker Smaller companies needing to upgrade both vendors and carriers. We incorporated driver and back-office training was assumed to require 12 their back-office computer systems hours per employee. For the median could see additional costs. ATA and the worker training costs into the RIA for the NPRM. (We did not calculate costs cost estimate, FMCSA assumed 1 hour Minnesota Trucking Association of driver training would be required, (MnTA) both pointed out that field for training drivers to prepare backup paper RODS if the EOBR malfunctions, while 10 hours would be required for enforcement officers would also require back-office staff. training on EOBRs. MnTA was as training in record of duty status concerned that creating a new EOBR preparation is already required under Finally, for the low cost estimate, audit system would ‘‘further remove the § 380.503, Entry-level driver training FMCSA assumed only 30 minutes of focus of the industry and FMCSA from requirements.) We estimated high, driver training would be required, with promoting safe driving.’’ median, and low equipment purchase 2 hours required to train back-office PeopleNet estimated their ‘‘train-the- and installation costs, depending upon staff. Again, these estimates were based trainer’’ modules would take 2 days. which types of units are most likely to either on comments filed to the docket Qualcomm provided detailed estimates be purchased and installed as a result of by equipment vendors or carriers or on of training time for drivers (30–60 this rule. For instance, the factor most EOBR information provided by vendors minutes online, 1 classroom hour, and affecting per-unit EOBR purchase and or manufacturers. Evaluating training 1 hour for hands-on exercises), installation costs was whether or not the costs in this way enabled us to test the dispatchers (30–60 minutes online, 2.5 unit would be integrally synchronized sensitivity of these cost assumptions on classroom hours, and 1 hour for hands- with the truck engine; integral the cost-benefit analysis results. on exercises), and information synchronization correlates with a high 13.5 Typical Cost of a Minimally technology staff (30–60 minutes online cost estimate. In this way we could Compliant EOBR and 4–6 classroom hours). XATA account for the entire range of EOBR estimated 2.5–3 hours training for deployment costs likely to result from Commenters’ estimates are shown in drivers and 3–4 days for back-office the rule. the following table:

TABLE 1.—EOBR COST ESTIMATES

Association commenter Cost for units and back-office support Total cost to industry sector (estimate)

United Motorcoach Association ...... $1,500–$3,000 per unit ...... $60,000–$120,000 for units. American Bus Association...... $1,500–$3,000 per unit, $10,000–$80,000 $120 million for units, $280 million for system computer costs. upgrades. National Propane Gas Association ...... $1,000 per unit, $15,000 per office unit ...... $35,000,000 for units, $52,500,000 for back offices. Colorado Ready Mixed Concrete Association ... $1,000–$3,000 per unit.. American Trucking Associations ...... $1,000–$2,000 per unit, not including back of- fice and communications.. Truckload Carriers Association ...... $1,000–$3,000 per unit, more for retrofit on older trucks.. National Solid Wastes Management Association $500 for new trucks, $3,000 for old ...... Up to $333 million for retrofit (private sector). Up to $75 million for retrofit (public sector).

Cost for units and back-office support

Carrier: United Natural Foods (using XATA’s sys- $4,100 per unit, $150 installation per unit. tem). Windy City ...... $700 per unit, $20–$40 monthly fee. Golden Plains Trucking, Ralph Meyers $4,000 per unit. Trucking. ...... Total cost to business $14–$15 million including installation (for 13,000 tractors). Vendor: XATA ...... Current: $1,000–$2,000 per unit. TACS ...... $1,000–$3,000 based on sophistication, $30–$500 for driver identification, $3,000 and up for management software. Siemens ...... $300 per unit (original in vehicle), $450–$700 per unit (after-market installation). Karta Technologies ...... $500 per unit (purchase), $20–$25 per unit per month (leased). PeopleNet ...... $1,000–$1,500 per unit. Tripmaster ...... $1,200 per unit (basic), $2,000–$3,500 per unit (advanced).

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Cost for units and back-office support

Qualcomm ...... $500 per unit (minimal phone and black box technology), $8 per unit per month for web-based back office (not including wireless costs). GPS-based systems: Scanware ...... $3,000 per unit, not including data acquisition and auditing. If ruggedized, $6,000–$7,000. LinksPoint ...... $3,200 per unit (incl. computer, GPS receiver and software). CPS ...... $2–$3 per day per unit. Vendor: Karta Technologies ...... $40 per vehicle per month. PeopleNet ...... $20 per vehicle per month; up to $55 including communication costs (Back-office costs neg- ligible, system is Web-based.). Tripmaster ...... $10 per vehicle per month (or $20,000 to purchase software for carrier’s use). Scanware ...... $1 per driver per month (assuming carriers provide software and hardware support). CPS ...... ‘‘Minimal or nil’’ because the units should be compatible with existing systems.

A few commenters provided estimates 13.6 Typical Cost To Incorporate Many commenters addressed broader of EOBR operating costs. ATA estimated EOBR Capabilities Into On-Board concerns about potential EOBR costs. $60 to $75 per unit/month for Computer and Communications ATA, TCA, the Tri-State Truckers communications, depending on the Systems Association, and the Kansas Motor frequency of contacts with satellite or Carriers Association questioned whether XATA estimated that installing its other centers; recalibration at $45 per carriers could sustain economic units in existing trucks would cost viability in the face of EOBR costs ‘‘event’’ plus technician travel and CMV $1,000 to $2,000 per vehicle, not downtime; and additional costs for added to the costs of current regulation. including communications support. They also contended an EOBR mandate record storage and retrieval. United Qualcomm estimated a monthly cost of Natural Foods, a Xora client, estimated would exacerbate the CMV driver $8 per CMV to add an HOS application shortage. In addition, these commenters start-up costs of $4,100 per truck and to a current Qualcomm subscription. $20,000 for software upgrade and recommended that an EOBR mandate be Depending upon the system and partly offset by eliminating the technical support. Operational costs run features selected, a Qualcomm requirement to maintain paper RODS. $24 unit/month for satellite tracking and subscription costs $20 to $65 per TCA, PMAA, the North Carolina communications. Schneider estimated vehicle per month. Older Qualcomm in- Forestry Association, and the Kansas its operating costs for RODS would go cab units might require upgrades Motor Carriers Association asserted that up from $1.1 to $5.8 million per year, ranging from $80 to $400. small carriers would bear an undue for a net annual increase of $4.7 million. For its fleet of 13,000 power units, burden if required to install EOBRs. CT Transportation Services and Ralph Schneider estimated equipment and Gases and Welding Distributors Meyers Trucking each estimated system licensing and installation costs Association stated EOBR costs are high training, maintenance, and support at of $1 million; $2.8 million for relative to the limitations of EOBR $165 per hour. First-year costs were installation labor, mileage, routing, and technology. SCRA pointed to increasing estimated at $175,000 and annual downtime; $2 million for enhancing costs of training, computer upgrades, operations costs at $25,000. fleet management software; and $5 replacement, maintenance, inspection, million for increased satellite data Agency Response and equipment calibration. USTA communications. ATA estimated EOBR calculated that if EOBRs cost $3,000 In developing the cost analysis for the unit costs of $3,500, including each, the organization’s four largest RIA, FMCSA considered the docket communications and GPS. Other members would incur a total cost of $75 comments, conducted its own research commenters expressed concerns about million. regarding which type of unit would be costs but did not provide quantitative TCA drew an analogy between the minimally compliant with the proposed estimates. costs of complying with the rules on rule, and then developed ‘‘low ATA and four other motor carrier controlled substances abuse and alcohol estimate’’ cost figures for this minimally association commenters listed a variety abuse prevention as revised in the early compliant device. We defined a of potential cost items, including 1990s and the proposed EOBR minimally compliant device as one not development and execution of training regulations, asserting that complying integrally synchronized to the ECM but programs for drivers, office, and with a mandate costs twice as much as operating under a voluntary regime. capable of recording the truck’s location information technology staff; MnTA contended that Minnesota law at least as often as required by the communications costs (airtime); enhancements to computer system enforcement agencies have difficulty performance standards outlined in this capabilities; EOBR inspection, interfacing with various State and NPRM. For the purposes of developing maintenance, calibration, repair, and FMCSA databases. SCRA called this ‘‘low’’ cost estimate, FMCSA recordkeeping; CMV downtime; and attention to the need for proper training considered certain cell-phone-based future equipment and system upgrades for law enforcement officials. products without engine and replacements, including costs for Individual drivers and owner- synchronization to be a reasonable replacing existing systems to comply operators also expressed concerns about proxy for a minimally compliant device. with new regulatory requirements. ATA what they considered to be the As detailed in the RIA, we used the stated that EOBR performance criteria significant potential costs of EOBRs. costs associated with installing and would generate lower priced solutions, OOIDA contended the potential costs of operating that device to develop the and advised FMCSA to carefully EOBRs and related accessories, ‘‘low’’ cost estimate. consider costs for replacements and communications equipment, and back- upgraded devices. office systems would ‘‘dwarf [EOBRs’]

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de minimus, if any, contribution to compliance system is working well in terms of HOS compliance, compared public safety.’’ IBT thought any time overall, and that installing EOBRs with drivers using paper RODS. For savings would be more than consumed would involve high costs without example, if a driver drove 11 hours and by training time. In addition, IBT significant benefits. 7 minutes using an EOBR without a contended EOBRs are unreliable and rounding feature, the driver would have Agency Response thus would produce few benefits. Many an HOS violation identified. However, drivers and owner-operators painted a It is difficult to estimate all of the in Qualcomm’s view, most drivers using grim economic picture for small motor initial and ongoing EOBR costs reliably. paper logs would round down the time carriers required to comply with any Costs to the motor carrier would vary to 11 hours. Allowing EOBRs to be new regulation mandating EOBR use, depending both on the system currently programmed to ignore intervals of 15 raising concerns about the impact of installed and the prospective new minutes or less would serve as an such a rule upon the current driver system. Rather than addressing these incentive by leveling the playing field shortage and questioning the potential variables, many commenters focused on between EOBR-using carriers and those cost savings and safety benefits. One in the potential costs of an industrywide using paper records of duty status. this group predicted any carrier with mandate to install EOBRs. FMCSA has Vendors also suggested regulatory fewer than 20 vehicles would go out of estimated the effects and concluded that incentives that FMCSA could offer to business. the cost of universal EOBR installation encourage EOBR use. For example, Some drivers offered a more would not justify the benefits at this Qualcomm specifically recommended optimistic view. A few said EOBR cost time. Therefore, the NPRM focuses on that FMCSA relieve motor carriers using the highest risk carriers, a targeted estimates were not as high as they had EOBRs from the requirement to approach that allows FMCSA to feared, and they could foresee possible maintain supporting documents other concentrate its resources (and EOBR safety and operational benefits. One than the information collected by the use) on the most serious violators of the driver predicted costs would go down if EOBR that supports the automated HOS regulations. In the RIA, FMCSA the devices were manufactured in bulk; RODS recordkeeping. however, another was concerned costs made the assumption that all carriers Many commenters suggested that one would remain high without adequate subject to an EOBR mandate would be of the most significant deterrents to competition among vendors. installing these units and supporting Advocacy organizations also were equipment and software for the first voluntary EOBR installation was the more optimistic. IIHS asserted cost is time. This is a conservative estimate fear of post-crash litigation based upon not a significant factor. It cited two intended to ensure we do not the extensive operational data EOBRs studies showing that affordable EOBRs underestimate the costs associated with are capable of producing. They are available and that prices would drop this rulemaking. The Agency believes recommended limiting the data even further if EOBRs were mandated. the population of high-risk carriers, elements EOBRs would be required to Vendors, too, were generally which appears to be less than 1 percent produce and restricting access to the optimistic about their ability to provide of the overall carrier population, is the data as incentives for voluntary low-cost solutions to carriers. They group least likely to have EOBRs at installation. For example, ATA suggested several potential areas for cost present. These are the carriers most recommended that future EOBR savings in system hardware and likely to be affected by the rule. Because regulations specify that EOBR data software. For example, Nextel expected they represent such a small percentage accessed by government officials would costs for its potential EOBR product to of the total carrier population, costs are be restricted to information required to be negligible because their solution is unlikely to be large overall. enforce the HOS regulations, and that based on cell phones. PeopleNet stated access to the data be restricted to the it currently offers an EOBR/HOS 14. Incentives To Promote EOBR Use motor carrier and its agents, FMCSA product, and aftermarket installation Commenters were generally in favor officials, authorized State enforcement takes 1.5 hours or less. IBM of incentives to promote EOBR use. personnel, and representatives of the recommended an industrywide mandate Federal tax relief was the most common NTSB for purposes of post-crash to lower costs through economies of incentive mentioned. Motor carriers investigations. The ATA also suggested scale. Qualcomm asserted that including J.B. Hunt, Maverick that an FMCSA commitment to work minimizing EOBR cost would be key to Transportation, Roehl Transport, and with the industry to seek enactment of motor carriers’ acceptance of an EOBR Schneider suggested that Federal tax statutory protections for data beyond requirement. The company relief would serve as an incentive to that required under part 395 would recommended that road speed not be promote EOBR installation. Motor significantly alleviate a major recorded because retrieving such data at carrier associations, an EOBR impediment to acceptance of EOBRs. frequent intervals is not otherwise manufacturer, and an individual driver Agency Response necessary and would increase the EOBR made the same point. memory requirements. Qualcomm Four EOBR vendors recommended FMCSA finds merit in vendor maintained that recording malfunction specific design specifications they comments that appealing design events, third-party documentation on believe would make EOBRs more specifications would serve as incentives installation, repair, and calibration, and appealing to motor carriers. For to EOBR installation. Toward that end, smart cards would add costs and be example, LinksPoint suggested FMCSA the performance specifications proposed unduly burdensome. allow systems that do not need to be in this rulemaking address many of the The Santa Clara Valley Transportation integrated with the vehicle and could be design proposals recommended by Authority said that its already used with current mobile computing commenters. For example, as have a GPS/Automatic Vehicle Location and GPS technologies. Qualcomm recommended by LinksPoint, the system providing location updates at 2- recommended EOBR specifications that proposed EOBR performance minute intervals, and that any allow the rounding of driving time to specifications do not require ‘‘integral requirement to synchronize this system the nearest 15-minute increment. synchronization’’ to the vehicle engine with the engine would be very costly. Otherwise, Qualcomm reasoned, drivers and thus allow for both innovation and Santa Clara noted that its current HOS using EOBRs could be at a disadvantage, potentially reduced costs.

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FMCSA does not agree, however, with 15. Miscellaneous Questions that its drivers are in personal contact Qualcomm’s suggestion to establish As many responses to the questions in with supervisory personnel at the specifications that allow for rounding of this section are similar to those beginning and end of the workday, and driving time to the nearest 15-minute discussed earlier, we will summarize the company uses software to flag any increment. The current regulations them here. Commenters generally dispatch that would cause an HOS concerning paper records of duty status consider EOBRs highly reliable, with violation. ATC Leasing Company, a do not provide for rounding, and equipment vendors estimating them to provider of driveaway services, noted FMCSA’s question-and-answer guidance have a useful life of 7 to 10 years or that its drivers operate a given CMV indicates that periods of less than 15 longer. Motor carriers agreed. only once and would therefore need to minutes may be identified by drawing a use portable EOBRs. The company line to the Remarks section of the RODS Agency Response believes that, in general, the and entering the amount of time, such FMCSA’s analysis of the data and marketplace demand for portable EOBRs as 7 minutes. further consultation with equipment would be low, resulting in high per- FMCSA sees some merit in vendors suggest a more conservative device costs. Qualcomm’s comment that motor estimate for the useful life of EOBRs Several commenters asked for carriers using EOBRs should not have to than that provided in equipment operational-based exemptions from any maintain supporting documents other vendors’ comments to the ANPRM. future EOBR requirement for particular than those produced by the EOBR. This Vendors we consulted estimated the types of short-haul operations. These NPRM proposes adopting a new 49 CFR included the National Solid Wastes 395.11 to provide partial relief from the devices to have a useful life of 3 to 5 years, if technological obsolescence is Management Association (100-air-mile- current supporting document radius exemption or solid waste requirements under 49 CFR 395.8(k) for factored in. Please see the RIA, available in the docket, for further discussion. collection trucks); PMAA (short-haul motor carriers that install a device drivers delivering gasoline); NRMCA compliant with proposed § 395.16. 15.1 Should FMCSA Propose To and its Colorado State association EOBRs meeting the requirements of Require That Motor Carriers in General, (ready-mixed concrete industry); NPGA § 395.16 produce regular time and CMV or Only Certain Types of Motor Carrier (local propane delivery operations); the location position histories sufficient to Operations, Use EOBRs? National Rural Electric Cooperative verify adequately a driver’s on-duty Mandate EOBRs for some motor Association (utility service vehicles in driving activities. However, additional general); and the USTA (utility service supporting documentation, such as carriers. The National Private Truck vehicles, particularly those operating driver payroll records, is still necessary Council and two other commenters said under the 100-air-mile-radius to verify on-duty not-driving activities. that any requirement to use EOBRs exemption); and the National Ground Therefore, the proposed § 395.11 does should apply only to long-haul trucking Water Association (well drillers whose not provide a blanket exemption from companies, reasoning that the cost of CMVs travel less than 5,000 miles supporting document requirements for installing and using EOBRs would not annually). ATA recommended FMCSA carriers using EOBRs compliant with be justified for local distribution assess whether drivers and operations § 395.16. Rather, it would limit the operators. not currently required to keep RODS volume of required supporting Several commenters stated FMCSA (100-air-mile-radius drivers, drivers in documents to those necessary to verify should exempt motor carriers operating on-duty not-driving time and off-duty under the 100-air-mile-radius the State of , and certain drivers status. FMCSA issued a supplemental exemption. The Colorado Ready Mixed in agricultural operations) should be notice of proposed rulemaking Concrete Association noted that the 100- exempted from an EOBR requirement. concerning HOS supporting documents air-mile-radius exemption is based on Motor carriers of passengers and their on November 3, 2004 (69 FR 63997) and the recognition that short-haul operators industry associations asserted that expects to publish the final rule in the are at reduced risk of excessive driving FMCSA should not require EOBR use by near future. The Agency will consider time and resulting driver fatigue; carriers in this industry segment, in part public comments to today’s NPRM in requiring these carriers to use EOBRs because of its already strong record of determining whether adjustments to the would be tantamount to rescinding the safety and HOS compliance. The United supporting documents exemption exemption. The Highway Safety Motorcoach Association added that 95 procedures may be necessary. Committee of the International percent of such companies registered We recognize commenters’ concerns Association of the Chiefs of Police with FMCSA meet the Small Business regarding legal protection and access to suggested that if FMCSA requires Administration’s definition of a small EOBR data, and believe the performance EOBRs for interstate carriers, it should business. Greyhound Lines noted that specifications and regulations proposed avoid penalizing States that choose not its drivers have considerably different in this rulemaking help to mitigate these to require EOBRs for intrastate carriers work patterns from those of truck concerns. For example, the proposed using the 100-air-mile-radius drivers and operate on fixed, published EOBR performance specifications do not exemption. schedules that are designed to comply require that non-HOS data, such as The Motor Freight Carriers with HOS requirements. The National vehicle speed, be recorded. While Association (MFCA) and several LTL School Transportation Association FMCSA agrees that statutory protections carriers said that FMCSA should exempt (NSTA) argued against an EOBR against access to data from EOBRs the LTL sector because its systems for requirement for its members because beyond what is required to determine managing driver fatigue and ensuring only about 1 percent of HOS compliance would further compliance with the HOS rules already operations are interstate activity trips acceptance of the devices, legislative make it one of the safest segments of the subject to the FMCSRs. Similarly, the efforts toward that goal are outside the trucking industry. They asserted that Santa Clara Valley Transportation scope of this proposed rule. FMCSA LTL carriers locate their facilities and Authority argued that FMCSA should seeks comment, however, on data access dispatch their drivers in ways that not require EOBRs for local public protections that could be provided ‘‘virtually eliminate’’ HOS violations. transit agencies using the 100 air-mile- under current statutes. Yellow Roadway Corporation added radius exemption.

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One commenter argued that EOBRs Mandate EOBRs only for motor focusing first on the most severe must remain voluntary for owner- carriers with poor safety or compliance violations and the most chronic operators but did not provide records. Seven commenters suggested violators, we are proposing a supporting rationale. Two commenters, that if FMCSA chooses to mandate mandatory-installation ‘‘trigger’’ citing the potential financial impact on EOBRs for any motor carriers, it should designed to single out motor carriers small businesses that operate CMVs, do so only for carriers or industry that have a demonstrated history of poor requested FMCSA consider limiting the segments that have shown poor hours-of-service compliance. The trigger requirement for EOBRs to those carriers compliance with HOS regulations. for a notice of remedial directive and operating CMVs requiring a commercial Three in this group—a motor carrier, a proposed unfitness determination driver’s license. trade association, and an owner- would be a ‘‘final determination’’ of one Five of the seven carriers commenting operator—noted that such an approach or more ‘‘pattern violations’’ of any on this issue said that lack of a broad would relieve carriers already in regulation in proposed new Appendix C EOBR mandate would create an uneven compliance with the HOS rules of the to Part 385 (‘‘Appendix C regulations’’), playing field, while noting that their financial burden of purchasing and followed by the discovery of one or own potential costs to add EOBRs could installing EOBRs. United Motorcoach more pattern violations of any be considerable. ATA pointed out that Association stated that it ‘‘would Appendix C regulation during a CR motor carriers exempt from a endorse the mandatory implementation completed within 2 years after the requirement to use EOBRs would derive of EOBRs only for chronic offenders.’’ closing date of the CR that produced the a competitive advantage because they CVSA suggested that EOBRs could be first determination. A pattern violation could more readily attract independent used as ‘‘punishment’’ for carriers that of Appendix C regulations is a violation contractors (which presumably would show continued violations of HOS rules rate equal to or greater than 10 percent also be exempt). The few drivers or are found to have falsified their of the number of records reviewed. For favoring a universal EOBR requirement RODS. The Motor Freight Carriers example, 25 violations out of 100 also expressed concerns about Association and the Yellow Roadway records reviewed would be a 25 percent competition. EOBR vendors XATA, Corporation encouraged FMCSA to violation rate and therefore a pattern PeopleNet, and Qualcomm made a adopt a rule requiring individual violation. Based on data concerning similar point. Another EOBR vendor companies or industry sectors to HOS violation from CRs conducted stated that homeland security demonstrate a proven record of HOS between June 2001 and June 2005, this considerations should be the sole reason compliance and to subject carriers not trigger, if adopted, would result in the to exempt a carrier from an EOBR meeting that compliance rate to ‘‘more issuance of approximately 465 remedial requirement. CHP said that FMCSA strenuous requirements, including the directives to install EOBRs annually.3 could apply an EOBR requirement only possible imposition of recording The Agency believes this relatively to particular segments of the trucking devices.’’ small carrier population, with its severe industry, but expressed concerns about and recurring HOS compliance Agency Response economic equity. deficiencies, poses a disproportionate Mandate EOBRs for all motor carriers. FMCSA agrees that focusing first on risk to public safety. Therefore, Public Citizen and Advocates supported motor carriers with significant HOS mandatory EOBR installation and use by mandatory EOBR use for all CMVs over compliance problems is a sound this narrow subset of carriers is an which FMCSA has jurisdiction. They approach. The Agency believes this is appropriate and resource-effective contended FMCSA should require the strategy most likely to improve the means of promoting motor carrier safety. States to mandate EOBRs for intrastate safety of the motoring public on the FMCSA recognizes that there may be CMVs as a condition of a State’s highways in the near term and to make other factors that bear consideration in receiving Motor Carrier Safety the best use of resources, both those of determining the potential application of Assistance Program funds. Advocates enforcement agencies and of the motor an EOBR requirement, such as risks to added that NHTSA should issue a carrier industry. We are therefore passengers or to the general public from complementary regulation requiring proposing procedures for issuance of a release of hazardous materials. The EOBRs on all newly manufactured remedial directives requiring EOBR Agency requests public comment on vehicles subject to the prohibition on installation, maintenance, and use by whether EOBRs should be required of making safety equipment inoperative only those motor carriers with serious passenger carriers and carriers (49 U.S.C. 30122). CTA recommended and repeated HOS noncompliance. By transporting hazardous materials in requiring EOBRs in commercial motor focusing on this narrow carrier quantities requiring placarding. vehicles for which the driver is required population, we would increase highway to hold a CDL. safety while minimizing the cost to the 15.2 Other Comments J. B. Hunt commented that if FMCSA motor carrier industry, giving the IIHS recommended that FMCSA determines EOBRs would provide an Agency maximum return on the conduct a field operational test of EOBR enhanced level of compliance and investment of its enforcement resources. devices and conduct formal surveys to improved safety outcomes, the Agency As discussed in the Remedies section gather data on EOBR benefits, costs, and should mandate EOBR use in all of this preamble, FMCSA examined a use in HOS enforcement. operations subject to the HOS variety of possible parameters that ATA and IIHS asked how FMCSA regulations, including 100-air-mile- might be used to establish would determine that EOBRs would radius operations. Schneider expressed subpopulations of poor-HOS- achieve the intended results. ATA a similar view, asserting it would be compliance carriers to which an EOBR believes the Agency should provide irrational to exempt small carriers that mandate might apply. Agency CR evidence that EOBR use will reduce typically have less sophisticated results indicate that a substantial compliance programs and higher crash number of motor carriers do not 3 FMCSA considered, but is not proposing to rates than large carriers. One carrier routinely violate the HOS rules, and adopt, CVSA’s suggestion that EOBR installation be required as a ‘‘punishment’’ for part 395 violations. predicted that political considerations thus (based on the RIA for the proposal) The current civil and criminal penalties authorized would lead to a universal EOBR the benefits of an industrywide EOBR under 49 U.S.C. 521 for violations of the FMCSRs mandate. mandate do not outweigh the costs. In would remain unchanged under the proposed rule.

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fatigue-related crashes and thereby even more as a result of EOBR In developing this proposal, we also improve truck safety, arguing that any installation and use. These are motor considered findings related to the seven correlation between electronic recording carriers that FMCSA has determined to key research factors discussed in and crash reduction is merely have hours-of-service violations in 10 FMCSA’s April 2003 HOS final rule and speculative unless documented. ATA percent or more of the records of duty the September 2004 ANPRM on EOBRs. added that a study of motor carriers’ status examined during two or more CRs Equally important, as noted previously, experiences with automated recording within a 2-year period. Such carriers we considered several additional factors devices could be useful in determining have already demonstrated repeated recommended by commenters to the whether they contribute to safer driving noncompliance with the HOS ANPRM, including interoperability with performance and crash prevention. regulations after being afforded an other commercial motor vehicle opportunity to improve. The Agency’s intelligent transportation system (ITS) Agency Response existing compliance oversight processes applications and the use of standardized In response to IIHS’s recommendation would already have singled out these file formats. The latter criteria are for a field operational test of EOBRs and carriers for FMCSA’s attention because directly related to the factors discussed surveys to gather data on EOBR benefits, violations found during roadside in the preamble of the April 2003 HOS costs, and use in HOS enforcement, inspections, crash involvement, or both, final rule. Following is a discussion of FMCSA conducted such a survey and placed them statistically well outside the seven research factors with published the results in 1998 (the the norm at the time of the second CR. consideration of interoperability and UMTRI study, docket entry number 7). The Agency would also have provided standardized file formats. The study results were limited because recommendations to these carriers to Factor 1: Ability To Identify the of a very low (12 percent) response rate. guide them toward improving their Individual Driver Another field operational test, the safety performance and regulatory FMCSA-sponsored HM FOT discussed compliance. These carriers would be FMCSA proposes to correct an previously in section 13.2, found that offered a choice: Install a tool—the apparent gap in the existing AOBRD use of EOBR-related technology led to EOBR—to enable the carrier to gather regulation. The current rule includes no potential increases in operational and use more accurate data than are explicit requirement for driver efficiency, which could benefit safety contained in a paper RODS and provide identification beyond requiring the indirectly. more specific information on areas of driver’s signature on hard copies of the However, as also noted in section noncompliance the carrier must record of duty status (§ 395.15(b)(5)). 13.2, there is little research data linking address, or cease operations. As Commenters suggested a broad range of EOBR deployment directly to safety discussed in detail in section 13.2, HOS identification methods—PINs, benefits. A study such as ATA compliance rate information in the removable smart cards, assignment of suggested, in which data on many MCMIS, an FMCSA case-study analysis EOBR handsets to individual drivers, potential contributors to driving safety of a particular carrier, and analysis by and biometric systems. FMCSA’s would be tracked and analyzed Agency enforcement personnel support proposed approach takes into statistically, could certainly shed useful an inference that compliance with an consideration the operational realities of light on the relative contributions of EOBR remedial directive could reduce a EOBR use, including potential cost or factors such as CMV driver selection, in- carrier’s HOS-related violations by 50 operational burdens upon drivers and service training, motor carrier oversight, percent. motor carriers. and use of HOS recording devices. Such The NPRM includes a proposal for a a study would likely be extremely V. Agency Proposal requirement for driver identification, challenging to design, given that: (1) As noted in the Executive Summary without prescribing a specific method. Highway CMV-involved crashes are and the discussion of public comments, Motor carriers could use either data statistically rare events, so that several FMCSA proposes a comprehensive rule entry approaches, such as PINs or user years’ worth of data might be needed to increase EOBR use within the motor ID and passwords, or methods such as before a statistically valid comparison carrier industry. The proposed smart cards that carry identifying could be drawn; (2) motor carriers may regulation has three elements: (1) information or biometrics. This make changes to several of these areas Performance-oriented standards for proposed approach would allow motor concurrently; (3) the ‘‘before’’ data EOBR technology; (2) the mandatory use carriers to use identification systems might not have been maintained in a of EOBRs by certain motor carriers in a they may already employ in their fleet way that allows for direct comparison safety remediation context; and (3) management systems, allow adoption with the ‘‘after’’ data; and (4) incentives to promote voluntary EOBR without regulatory change of newer and participants’ awareness of and use. FMCSA believes this approach possibly more secure technologies as involvement in an active study could strikes an appropriate balance between they become feasible, and accommodate influence their data (i.e., a ‘‘Hawthorne promoting highway safety and future use of credentials currently being effect’’). minimizing cost and operational developed for transportation workers. As noted previously, in the absence of burdens on motor carriers Additionally, the EOBR would be comprehensive research data in this demonstrating strong and consistent required to display the driver’s name or area, the Agency infers from motor compliance with the HOS regulations. employee ID number, if applicable, on carriers’ comments to the ANPRM, case We seek public comment on these all EOBR records associated with that studies, and anecdotal information that proposals, discussed in what follows. driver. This requirement would also EOBR installation and use correlates apply when the driver serves as a co- A. Technology with increased HOS compliance and driver. reduced driver fatigue. This in turn FMCSA proposes a new set of could reduce the incidence of crashes performance-based standards for EOBRs Factor 2: Resistance to Tampering involving CMVs. that reflect the significant advances in The broad term ‘‘resistance to The HOS compliance of motor recording and communications tampering’’ denotes that the EOBR and carriers subject to remedial directives technologies since introduction of the its support systems cannot be under the proposed rule could improve first AOBRDs in 1985. manipulated to produce inaccurate

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information. The intent is to prevent information collected concerning the resistance, ability to record duty status tampering both at the input stage (for driver’s hours of service, or alteration of for each driver in a multiple-driver example, a driver enters a keystroke the source data streams used to provide operation, and ability to identify sensor sequence and presses a reset button to that information. failures and edited data. erase the last 2 hours of data) and the A RODS, whether in paper or However, several of the § 395.15 output stage (for example, a motor electronic form, provides a record of the requirements warrant revision. Rather carrier’s central file server uses an sequence of duty status events—date than amending § 395.15, the NPRM algorithm to replace all driving time and time they began, date and time they proposes a new § 395.16. The proposed over the 11-hour limit with an ‘‘off- ended, and location of each change of performance specifications in § 395.16 duty’’ status entry). Thus it duty status. Although the 1988 final rule reflect the need for and expectation of encompasses EOBR certification and on AOBRDs (53 FR 38666, Sept. 30, a high degree of reliability in 21st testing; self-diagnosis of failures in 1988) offered one approach to century electronic devices and the data hardware, software, and generating an electronic record, it was and information they record. For communications; and in-service limited by the recording and example, language concerning the maintenance and calibration. communications technologies that were device’s ability to ‘‘identify sensor Because myriad possible methods state-of-the-practice at that time. Date, failures and edited data when exist to meet data integrity and time, and driving status information had reproduced in printed form’’ (as auditability requirements, FMCSA to be obtained from on-vehicle sources. currently set forth in § 395.15(i)(7)) proposes a performance-oriented, Most of the requirements promulgated would be revised in proposed outcome-based regulation. The EOBR by the 1988 rule, found under § 395.15, § 395.16(i)(2)–(5) to include electronic and associated support systems must be are logical candidates for a proposed as well as paper output records. Table tamper resistant to the maximum extent EOBR regulation. These include 2 compares the similarities and practicable. They must not permit requirements concerning driver differences between the § 395.15 and alteration or erasure of the original interaction with the AOBRD, tamper § 395.16 requirements.

TABLE 2.—COMPARISON OF §§ 395.15 AND 395.16 REQUIREMENTS [The twelve items listed below are contained in ‘‘Notice of interpretation; request for participation in pilot demonstration project,’’ published by FHWA on April 6, 1998 (63 FR 16697 at 16698).]

49 CFR § 395.15 Proposed § 395.16

1 Sec. 395.15(a)(1) permits use of ‘‘Automatic on-board recording de- The EOBR does not have to be integrally synchronized to the engine vice’’ (OBR) as defined at 49 CFR 395.2: capable of recording driv- or other vehicle equipment. The EOBR does have to use GPS or er’s duty status accurately and automatically * * * must be integrally other location tracking systems that record location at least once a synchronized with specific CMV functions * * * must record engine minute; EOBRs could still use sources internal to the vehicle to use, road speed, miles driven (axle revolutions), date and time of record distance traveled and time. Requirement to record road speed day (internal clock). is removed. 2 Sec. 395.15(b)(3) Support systems: Must provide information about Sec. 395.16(i)(6) Support systems: Must provide information about on- on-board sensor failures and identify edited data. board sensor failures and identify edited data. Support systems must provide a file in the format specified in Appendix A of this part. The system must also be able to produce a copy of files on portable stor- age media (CD–RW, USB 2.0 drive) upon request of authorized safety assurance officials. 3 Sec. 395.15(f) Reconstruction of records of duty status: Drivers must Same requirement. See § 395.16(k)(2). note any failure of automatic OBRs and reconstruct records of duty status (RODS) for current day and past 7 days * * * must prepare handwritten RODs until device is operational. 4 Sec. 395.15(h)(1) Submission of RODS: Driver must submit, elec- Sec. 395.16(m)(1): Driver must submit electronically, to the employing tronically or by mail, to motor carrier, each RODS within 13 days fol- motor carrier, each record of the driver’s duty status. (2) For motor lowing completion of each RODS. carriers not subject to the remedies provisions of part 385 of this chapter, each record must be submitted within 13 days of its comple- tion. (3) For motor carriers subject to the remedies provisions of part 385 of this chapter, each record must be submitted within 3 days of its completion. 5 Sec. 395.15(h)(2): Driver must review and verify all entries are accu- Same requirement. See Sec. 395.16(m)(4). rate before submission to motor carrier. 6 Sec. 395.15(h)(3): Submission of RODS certifies all entries are true Same requirement. See Sec. 395.16(m)(5). and correct. 7 Sec. 395.15(i)(1): Motor carrier must obtain manufacturer’s certificate Sec. 395.16(q)(2): The exterior faceplate of the EOBR must be marked that the design of OBR meets requirements. by the manufacturer with the text ‘‘USDOT–EOBR’’ as evidence that the device has been tested and certified as meeting the performance requirements of § 395.16 and Appendix A of this part. 8 Sec. 395.15(i)(2): Duty status may be updated only when CMV is at Sec. 395.16 (o)(1): The EOBR must permit the driver to enter informa- rest, except when registering time crossing State boundary. tion into the EOBR only when the commercial motor vehicle is at rest. 9 Sec. 395.15(i)(3): OBR and support systems must be, to the max- Sec. 395.16(o)(2) The EOBR and associated support systems must be, imum extent practicable, tamperproof. to the maximum extent practicable, tamperproof and not permit alter- ation or erasure of the original information collected concerning the driver’s hours of service, or alteration of the source data streams used to provide that information. 10 Sec. 395.15(i)(4): OBR must warn driver visually and/or audibly the Sec. 395.16(o)(6) The EOBR must warn the driver via an audible and device has ceased to function. visible signal that the device has ceased to function.

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TABLE 2.—COMPARISON OF §§ 395.15 AND 395.16 REQUIREMENTS—Continued [The twelve items listed below are contained in ‘‘Notice of interpretation; request for participation in pilot demonstration project,’’ published by FHWA on April 6, 1998 (63 FR 16697 at 16698).]

49 CFR § 395.15 Proposed § 395.16

11 Sec. 395.15(i)(7): OBR and support systems must identify sensor Sec. 395.16(o)(9) The EOBR device/system must identify sensor fail- failures and edited data. ures and edited and annotated data when downloaded. 12 Sec. 395.15(i)(8): OBR must be maintained and recalibrated in ac- Same requirement. See Sec. 395.16(p)(1) specifications. cordance with the manufacturer’s specifications.

Integral synchronization. The matter would not prohibit the use of internal a driver in an unworkable position. of integral synchronization is probably (on-CMV) sources to record CMV Therefore, we propose to require that the most critical element of this distance traveled and time. An EOBR drivers keep handwritten RODS until rulemaking action, in the context of may still use sources internal to the the EOBR is replaced or repaired. In regulatory obstacles to the voluntary use vehicle, such as an ECM with internal addition, motor carriers using EOBRs of on-board recorders. Recent research clock/calendar, to derive distance under the proposed ‘‘Remedies’’ and assessments indicate that devices traveled. provision (see discussion below) would providing frequent reports of location Self-tests and self-monitoring. Several be required to repair or replace a and time information, obtained from commenters supported FMCSA’s malfunctioning EOBR within 14 days. signals not under the direct control of consideration of a requirement for We believe this would not place an the driver or carrier, have the ability to EOBRs to perform self-tests and self- unreasonable burden on motor carriers provide a record of equivalent or greater monitoring, with the driver and or drivers. accuracy than data from an internal dispatcher receiving notification of test EOBR certification. At issue is how CMV data source. Therefore, although failures. Many commenters also motor carriers and FMCSA would the requirement for integral indicated that verification by a roadside ensure EOBRs meet the specifications synchronization with the CMV was safety official or FMCSA compliance set forth in regulation. The basic choices fundamental to the definition of AOBRD officer would be a very simple process. are self-certification by manufacturers— in § 395.2, it would not apply to EOBRs. Taking these concerns into account, the status quo—or independent The proposed regulation would instead FMCSA proposes that EOBRs be capable certification by FMCSA or a third party. require accurate and frequent reporting of performing a power-on self-test upon Commenters were divided between of the CMV’s physical location, whether demand. The display screen must the alternatives of continuing to allow through a device installed on the CMV provide an audible and/or visual signal self-certification and a move to testing or one worn (as a cellular telephone as to its functional status. The EOBR and certification by FMCSA, possibly in might be) by the driver. would also be required to warn the conjunction with NHTSA, CVSA, and Unlike a conventional AOBRD (i.e., driver by visual and audible means that other agencies or organizations. Many one meeting, but not going beyond, the it has ceased to function, and to record commenters, particularly motor carriers, definition in § 395.2), the EOBR a code corresponding to the reason for supported the idea of a list of specified in proposed § 395.16 would be cessation and the date and time of that ‘‘approved’’ devices, while required to autonomously record the event. recommending against the type- CMV’s physical location at intervals no FMCSA proposes maintenance and certification process used by the greater than once per minute. The EOBR recalibration requirements similar to European Union for the new electronic could use GPS, terrestrial, inertial those currently provided for AOBRDs tachographs (the EU standard is highly guidance, or a combination of methods under § 395.15(i)(8): ‘‘The on-board design specific and prescriptive, and to accomplish this. For a GPS-enabled recording device is maintained and several commenters believe it would be EOBR or a cellular telephone, gaps in recalibrated in accordance with the too complex and costly to implement). coverage can be expected to be brief— manufacturer’s specifications.’’ We FMCSA proposes to continue generally on the order of minutes. The propose to broaden this requirement allowing manufacturers to self-certify EOBR record of distance traveled must only slightly by requiring that the EOBR EOBRs (as they have with AOBRDs), to be accurate to within 1 percent of actual record malfunction events and that the provide assurance to their motor carrier distance traveled by the CMV within a motor carrier retain EOBR recalibration clients that the EOBR and support 24-hour period. Furthermore, regardless and repair records. systems have been sufficiently tested, of the communications mode—wireless Although today’s electronic devices under representative conditions, to meet or terrestrial—and the method used to are generally highly reliable, they do the requirements of the FMCSRs. EOBR synchronize the time and CMV- occasionally malfunction. As with many manufacturers would be required to operation information into an electronic electronic devices, losing access to an ensure their devices and support RODS, FMCSA would require the EOBR EOBR can present a range of operational systems meet or exceed the set of records to maintain and display duty and recordkeeping challenges for performance criteria presented in status information (including distance drivers and motor carriers. While proposed new § 395.16 and Appendix A traveled per day +/¥1 percent) commenters agreed that the driver of this NPRM. Under this self- accurately and to maintain the integrity should be allowed until the ‘‘next certification program, the EOBR of that information. reasonable opportunity’’ to repair or manufacturer would certify the device This change serves two purposes. It replace a defective EOBR, they defined conforms with certain pass/fail criteria frees EOBR developers from the a ‘‘reasonable’’ period as anywhere from including: necessity of connecting to the CMV, and 13 to 90 days. FMCSA must strike a • Accuracy of recording of CMV it opens the door to more accurate balance between requiring timely repair distance traveled recording of non-driving duty status or replacement of an EOBR and • Frequency of recording location categories. The proposed regulation imposing requirements that could place position

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• Output display requirements (less than 15 minutes) in the ‘‘Remarks’’ 52846, Sept. 7, 2006). The terms and • Data interface requirements for section of the document. A series of conditions of the exemption are hardwired and wireless transfer rounding errors—deliberate or described in that notice at FMCSA • Data file format requirements otherwise—could easily result in errors Docket No. 2003–15818. • Power-on self-test of several hours of duty time over the The key concern is that travel • Ambient temperature functional course of a long trip. Drivers have been distance—and the associated driving limits required to record location only when time—be recorded and reported at a • Vibration and shock requirements • there is a change in duty status. This level of accuracy appropriate to ensure Operator safety requirements has the effect of increasing the HOS compliance. Specifically, it is FMCSA believes this approach would complexity and time needed for a motor critical that the device not provide improved guidance to EOBR carrier or enforcement official reviewing ‘‘undercount’’ distance (or the manufacturers regarding the Agency’s the records to reconstruct a trip to associated travel time) because that expectations for device performance. It determine compliance, particularly if could mask HOS violations. By the same would address motor carriers’ and safety the supporting documents are token, an ‘‘overcount’’ of distance compliance officials’ concerns about incomplete or missing. traveled could suggest HOS violations whether an EOBR had indeed been The current definition of AOBRD at where none exist. FMCSA proposes to tested for regulatory compliance, and 49 CFR 395.2 states: ‘‘The device must require that the difference between whether it passed the tests. be integrally synchronized with specific actual distance traveled and distance Factor 3: Ability To Produce Records for operations of the commercial motor per day (i.e., a 24-hour period) Audit vehicle in which it is installed. At a computed via location-tracking methods minimum, the device must record be +/¥1 percent, with a 1-minute FMCSA acknowledges drivers’ and engine use, road speed, miles driven interval for the EOBR to record location motor carriers’ comments that the ***.’’ When the regulation was data. FMCSA believes this will keep the current blanket prohibition against published, it was necessary to include technology affordable for motor carriers amending AOBRD records places this requirement because integral while still providing an appropriate unnecessary operational obstacles to synchronization and engine information level of accuracy for location-based wider adoption of electronic HOS were essential to enable verification of verification of RODS. recording devices. The proposed when a driver was in an on-duty driving FMCSA requests comments on the regulation would allow drivers to status. Since that time, advances in technical requirements and associated amend a non-driving record object-location technologies and costs of recording CMV location across immediately before and after a trip or communication of location information a range of time intervals (1, 3, and 5 workday. This would provide are such that it may no longer be minutes) and accuracies (1, 3, and 5 operational flexibility to drivers to necessary to require integral percent). correct duty status errors arising synchronization. The Agency stresses that it is not the because the driver forgot to log out of However, in order to ensure that time intent of the NPRM to require the EOBR the system. The limitation would and travel distance information is to transmit location information from prevent attempts at amendments to recorded accurately, the vehicle location the device (or the CMV in which it is ‘‘update’’ the EOBR record in information must be recorded at used) to a tracking system maintained anticipation of a roadside inspection. frequent intervals. The longer the by a motor carrier or another party FMCSA recognizes this proposal recording interval, the less accurate the working on a motor carrier’s behalf. We significantly changes the status quo and travel distance information, simply recognize that although there are no places responsibility on EOBR designers because the location will be computed operational costs to receive satellite- to safeguard against fraudulent entries. as a straight line between points. On generated location information (such as FMCSA agrees with commenters that June 10, 1998, Werner Enterprises from the GPS array), transmitting that some type of audit trail is useful and entered into a Memorandum of information from the EOBR to another necessary. Although various elements of Understanding (MOU) with the agency location would entail costs. Because § 395.15 speak indirectly to auditability to use GPS technology and related safety FMCSA does not propose to require the of AOBRD records, we believe the management computer systems as an EOBR to transmit information at specific requirement needs to be strengthened. alternative to handwritten driver RODS. intervals to the motor carrier or anyone Therefore, we propose to require Over the course of the pilot else, the location update intervals ‘‘parallel data streams’’ (sequences of demonstration project, FMCSA would not increase the cost of the EOBR original and modified data entries) to conducted onsite reviews and or affect how it is used. The update clearly indicate the content of original investigated a complaint. FMCSA’s intervals are simply a matter of records, any revisions and amendments reviews confirmed that the inability of programming or menu selection for the to the records, the identities of people Werner’s original electronic logging device. who entered and revised or amended system to accurately measure distance FMCSA requests comments on the data, and when the original entries and traveled and average speed was caused question of transmitting location amendments were made. not by any limitations of GPS information from the EOBR to the motor Recording interval: In order to specify positioning but rather by the infrequent carrier. an appropriate interval for an EOBR to updates of vehicle position being record information, we must consider recorded by the system. In March 2002, Factor 4: Ability of Roadside the way the information is to be used, Werner and FMCSA entered into a Enforcement Personnel To Access the not simply the capabilities of the revised MOU to amend the terms of the HOS Information Quickly and Easily various technologies to sense and record June 1998 agreement. FMCSA granted Data presentation (display) format. it. Werner a 2-year exemption in The presentation requirements for HOS Historically, CMV drivers have been September 2004 to allow the carrier to data on an AOBRD are fundamentally required to record information on the continue to use its system. The Agency different from those for paper RODS: RODS graph-grid in 15-minute renewed the exemption for another 2- AOBRDs do not require the familiar increments and to note shorter periods year period in September 2006 (71 FR graph-grid output format, and devices

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lacking electronic displays have no safety compliance assurance Other uses for data. Drivers and motor output presentation. This presents a community—there are perhaps 10,000 carriers opposing an EOBR mandate also challenge to roadside safety officials. laptops and handheld computers in use expressed concerns about the potential Most commenters supported a by FMCSA and State commercial for ‘‘scope creep’’—collection by EOBRs standardized, simple EOBR display vehicle safety officials today. of data for use in enforcement and format showing the current driver- In addition to requiring the graph-grid litigation actions unrelated to hours-of- related status and highlighting any and flat file output of the full record on service compliance. It is FMCSA’s noncompliance. a 24-hour basis, the proposed rule intent that the data recorded on EOBRs The data file format for an output requires duty status summary and support systems, and the display must facilitate review by information similar to that currently information derived from those data, roadside safety officials using handheld required under § 395.15(i)(5). This relate solely to compliance with the computers. The current regulation information would immediately HOS regulations. The data requirements requires only a hardware interface indicate to the enforcement official are therefore limited, and the between the AOBRD and the motor whether a more detailed review of the technological challenges of collecting, carrier’s back-office system. Some records might be appropriate. recording, and retaining the data on the commenters believe the current Reportedly, many safety enforcement EOBR and support systems are generally hardware standard (RS–232) for serial officials are apprehensive about entering well known and are met by many communications is outdated. Others the cab of a commercial motor vehicle manufacturers. As discussed in the maintained that manufacturers should to check HOS records on an AOBRD. Agency’s response to comments about develop data interchange standards. They perceive their physical presence in the development of a ‘‘basic’’ EOBR to Still others pointed to the wide range of the driver’s workspace as being promote increased carrier acceptance, standard data interchange methods potentially unsafe. To address this one reason for proposing to eliminate available (e.g., USB) but emphasized the concern, FMCSA proposes to require the requirement for recording road importance of having standardized data that information displayed and stored speed is that § 392.6, Schedules to formats and communications protocols. on the EOBR be made accessible to conform with speed limits, addresses FMCSA’s proposed performance- road speed in a broader safety context. based approach to standards for EOBRs authorized Federal, State, or local enforcement officials for review without Notwithstanding these deliberate would provide several options for measures to narrow the scope of today’s information transfer and display. EOBRs the official’s having to enter the CMV. This proposed requirement could be rule, FMCSA reserves the right to adopt would be required to produce upon enforcement policies and practices to met in a variety of ways—by using demand a driver’s HOS chart using a take advantage of continuing various hardwired and wireless graph-grid format in either electronic or technological advances. Any future communications methods; by copying printed form and a digital file in a flat proposals to use EOBRs or other the EOBR information to removable file using a specified format. The graph electronic monitoring for enforcement, media and handing the media to the grid and digital file must show the time compliance, or other Agency purposes official; or by simply handing the EOBR and sequence of duty status changes will be evaluated on their merits. including the driver’s starting time at to the official. We recognize industry concerns the beginning of each day. Factor 5: Level of Protection Afforded regarding the potential use of electronic The option for providing the RODS Other Personal, Operational, or monitoring data in litigation. For the data via a flat file would serve two Proprietary Information Agency to withhold such data in purposes. It would allow the use of response to a Freedom of Information smaller and less costly electronic The existing information collection Act request, a court order, or another displays on the EOBR itself and also requirements for paper RODS and legal process, however, would require permit the data to be transferred to a AOBRDs, as well as those proposed for statutory amendments. FMCSA safety official’s laptop computer, PDA, EOBRs, are intended to produce an emphasizes that, under the proposal, the or similar device. accurate HOS record. The record must vast majority of motor carriers would With respect to options for hardwired accurately disclose the amount of time have full discretion as to whether to use and wireless data transfer methods, the the driver spends in each of the four EOBRs that comply with proposed Agency’s intent is to allow only a one- duty status categories, the date, and the § 395.16 (or AOBRDs compliant with way transfer—the enforcement official’s location of each change of duty status. § 395.15) or to continue using paper computer would not transfer data to the The information is recorded and RODS. Only those motor carriers with EOBR. In addition, the use of a standard reviewed by FMCSA and its government significant and recurring HOS file format for EOBR data transfer could Agency partners to determine noncompliance would be required to permit an extra layer of motor carrier compliance with the HOS requirements install and use EOBRs. compliance verification through of part 395. Location information is Data security of EOBRs. The automated screening of the records. A limited to city and State, the level of September 2005 Volpe Center report, standard file format could also reduce detail required to enable reconstruction Recommendations Regarding the Use Of the cost of EOBRs and support systems, of the sequence of events for Electronic On-Board Recorders (EOBRs) particularly for small motor carriers compliance-assurance purposes. The for Reporting Hours Of Service (HOS) using desktop-computer-based back- level of detail that would be required for and the July 2005 National Institute of office recordkeeping systems. The EOBR records is the same as for paper Standards and Technology (NIST) reduction in support system costs RODS. report, Technical Review and would flow from the ‘‘few to many’’ As discussed under Factor 1, driver Assessment: Recommendations relationship between the back-office identification requirements would be Regarding the Use of Electronic On- systems and EOBRs; according to some geared to verification of the driver’s Board Recorders (EOBRs) for Reporting industry estimates, there are more than identity on an HOS record. This Hours of Service (HOS), address data 400,000 EOBRs and ‘‘EOBR-ready’’ rulemaking would not require security in terms of physical security for devices in use today. This same disclosure of a driver’s proprietary portable storage media devices and data equation holds for the motor carrier information. security for the RODS information.

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As discussed in the NIST report, records to document the results of requirement for electronic tachographs although data stored on the portable various types of assessments (such as a and their support systems. media are not encrypted, they are driver’s physical qualifications) and FMCSA proposes a single set of written in binary code. This non-text compliance with regulations concerning performance-based specifications for format renders the data unintelligible to CMV operations (such as a RODS to EOBRs under a new § 395.16. This has a person attempting to view or edit the document HOS). the advantage of being simpler and more log file using a personal computer with FMCSA’s commitment to promoting straightforward for motor carriers to use, a text editor. This approach offers an highway safety and preventing crashes for manufacturers and system providers improved level of data tampering involving CMVs is compatible with to develop, and for safety officials to protection. If text files are used, they requiring records to determine the enforce. It would promote the use of can be made ‘‘read only’’ to prevent number of hours CMV drivers drive, are advanced technologies as they become alteration except by authorized on duty, are off duty, or are using a more affordable and appropriate for personnel. This would allow drivers to sleeper berth, and the location of motor carrier applications. review their logs, but not to alter them. changes in duty status. Except in the Several of the proposed performance Finally, NIST noted that although context of an investigation of a crash or requirements discussed earlier—such as encryption provides a high level of a complaint of alleged FMCSR the removal of the ‘‘integral privacy and security, the technologies violations, when the Agency might synchronization’’ requirement and involved can be complex and costly to inquire into off-duty time to learn if a substitution of a requirement for administer. NIST’s assessment is that driver was working for another motor accuracy of information on distance data security, rather than privacy of carrier or performing other work during traveled by the CMV, the requirement personal information, is probably the an alleged off-duty period, FMCSA for flat-file output, and the provision to allow communications via several principal concern. Thus, data generally does not inquire into a driver’s alternative hardwired and wireless encryption may provide a higher level off-duty activities. The Agency’s interest methods—have in common the of security than that required for RODS in records of duty status that identify potential to decrease the cost of EOBRs. applications. FMCSA agrees with this the date, time, and location at each The proposed elimination of the integral assessment and therefore is not change of duty status is based on its synchronization requirement opens the proposing use of encryption for EOBR need to reconstruct the sequence of door to using a large variety of data for wired data transfers between events for trips to determine compliance commercial off-the-shelf EOBRs and roadside enforcement with the HOS regulations, including computers, or between motor carrier telecommunications devices as the whether the driver was afforded an off- back-office systems and safety EOBR, for a significant reduction in duty period and had the opportunity to enforcement computers during CRs. EOBR hardware costs. Another potential However, for wireless data transfers obtain restorative sleep. If during this change in performance requirements between EOBRs and roadside enforcement process FMCSA found would be the elimination of any enforcement computers via Bluetooth or evidence of vehicle activity during a requirement for the EOBR to accept Institute of Electrical and Electronics claimed off-duty period, we would keyboard input for State border crossing Engineers, Inc. (IEEE) 802.11g ‘‘Wi-Fi’’ inquire further to establish the veracity information. This AOBRD requirement, standards, FMCSA plans to specify a of the RODS. which facilitated motor carriers’ standard for data security and Finally, as stated in the September compliance with fuel tax reporting encryption. We have not identified an 2004 ANPRM (69 FR 53386, at 53392, procedures, reflected a design feature optimal standard, and request Sept. 1, 2004) and reiterated under common to 1980s-era recorders. FMCSA comments on which existing industry Audit Trail/Event Log in this NPRM does not propose to remove from standards for data security and preamble, the Agency recognizes that § 395.15 the requirements for integral encryption should be required to cost- the need for a verifiable EOBR audit synchronization, for recording of State effectively prevent the hacking of both trail—a detailed set of records to verify border crossing information, and for the EOBRs and roadside enforcement time and physical location data for a capability to transfer data to a ‘‘back- computers. Such attacks would include particular CMV—must be office’’ system. unauthorized access to data and device counterbalanced by privacy Under this NPRM, motor carriers now functions as well as denial of service. considerations. See also the discussion using AOBRDs compliant with § 395.15 EOBRs and privacy. This NPRM does on FMCSA’s Privacy Impact Assessment would not be required to invest in not change the treatment of HOS records later in this preamble. § 395.16-compliant EOBRs. These with respect to privacy matters. Factor 6: Cost carriers could continue to use the FMCSA’s predecessor agencies have had AOBRDs for the life of the CMVs in the authority to review drivers’ and The ANPRM requested public which they are installed. Any devices motor carriers’ documents since 1937, comments on development of used for recording HOS installed or when the first HOS regulations were requirements for a ‘‘basic’’ EOBR to used in CMVs manufactured on or after promulgated (3 MCC 665, Dec. 29, 1937; promote increased motor carrier 2 years following the effective date of an 3 FR 7, Jan. 4, 1938). acceptance of the technology. At issue EOBR final rule would be required to From the Motor Carrier Act of 1935 was whether the Agency should propose comply with the new requirements. onward, Congress has recognized the requirements for ‘‘minimally Federal Government’s interest in compliant’’ EOBRs that would provide Factor 7: Driver Acceptability providing a higher level of safety the electronic-data equivalent of an Drivers’ comments to the ANPRM oversight to CMV drivers than to drivers accurate RODS yet be more affordable docket (as well as to the dockets of the of other motor vehicles. CMV driver for small motor carriers and 2000 NPRM on hours of service, the licensing, assessment of physical independent drivers (69 FR 53386, at 2003 HOS final rule, and the 2005 HOS qualifications, training, and 53394); propose a performance-based NPRM and final rule) reflect mixed performance of driving and other safety- specification in the spirit of § 395.15; or feelings about EOBRs. Some drivers sensitive duties are subject to Federal propose a detailed design specification appreciate that use of these devices can regulation. The regulations also require similar to the European Union 2135/98 significantly reduce the time and effort

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of preparing and filing paper RODS. feasible for driver’s licenses, operations- the carrier whether it is operating under They also value the accurate and timely and maintenance-oriented vehicle cards, an EOBR remedial directive. duty status information an EOBR and electronic toll collection, but not for As discussed elsewhere in this notice, provides the motor carrier, which international border crossing FMCSA proposes to encourage motor removes an incentive for a dispatcher to (telecommunications protocols were carriers, and owner-operators leased to ask a driver to drive longer or take less already in place) and drivers’ records of motor carriers, to consider using EOBRs off-duty time than the regulations duty status. The researchers noted the by offering incentives in the form of an require. Other drivers view the prospect lack of a requirement for motor carriers alternative process of reviewing HOS of using an EOBR as an unwanted and to automate the RODS, and believed records. In addition, the performance unwarranted intrusion. These drivers ‘‘any proposed regulation specifying the specifications under proposed § 395.16 value their independence and self- use of smart cards would almost include a number of enhancements that reliance, and resent the notion of certainly encounter fierce opposition.’’ take advantage of the significant oversight by their supervisors or (Smart Cards in Commercial Vehicle advances in monitoring, recording, and Government authorities. Operations [Report FHWA–MC–97–022, communications technologies since the In August 1995, FHWA conducted a Dec. 1996], page 51). § 395.15 requirements were developed. survey of truck and motorcoach drivers It is clear that any type of These features should improve the to gauge potential acceptance of technological innovation must be usefulness of EOBRs to drivers. commercial vehicle operations (CVO) introduced in a forthright way. Users We are proposing that an EOBR be user services (User Acceptance of must be aware of the technology and required to provide an audible and Commercial Vehicle Operations understand the HOS regulations with visible signal to the driver at least 30 Services, Task B Final Report, Penn and which they must comply. Users must be minutes in advance of reaching the Schoen Associates, Inc., August 8, provided appropriate training, and the driving time limit and the on-duty limit 1995). On the whole, commercial technology should not distract them for the 24-hour period. EOBRs would vehicle drivers were receptive to and from their primary tasks. For most also be required to provide an audible supportive of the use of CVO motor carriers, the decision to use and visible signal to the driver at least technologies and user services on the EOBRs (or AOBRDs) would continue to 30 minutes in advance of reaching the road and in their vehicles. Technologies be voluntary under the proposed rules. 60/70-hour limits for on-duty time. The garnering the most support were seen by Motor carriers operating in compliance visual signal must be visible to the survey respondents as having the with the HOS regulations may continue driver when seated in the normal potential to ‘‘make my work easier,’’ be to choose between paper or automated driving position. The audible signal ‘‘useful for me,’’ and ‘‘* * * work [in RODS systems, according to what works must be capable of being heard and my vehicle]/I would rely on it.’’ See best for them and their drivers. Only discerned by the driver when seated in page 9 of the report. those motor carriers demonstrating the normal driving position, whether At the same time, drivers expressed recurrent, significant noncompliance the CMV is in motion or parked with the concern that certain of the technologies with the HOS regulations would be engine operating. would constitute an invasion of driver required to use EOBRs. However, all FMCSA acknowledges there is room privacy by either the government or the drivers used by those carriers would be to improve the accuracy of recording driver’s company. Another concern was required to operate vehicles equipped non-driving duty status categories. that the systems would rely too much with EOBRs. Comments to the docket by several on computers and diminish the role of FMCSA believes the EOBR remedial EOBR manufacturers suggested methods human judgment. Drivers were wary of provisions must, to be effective, apply to for noting on-duty not-driving status. services that might overpromise, leaving carriers using owner-operators and to Generally, these required a driver to them dependent on unproven the owner-operators’ equipment. We annotate the record or to select a technology. They wanted systems that recognize that a carrier leasing different duty status if on-duty not- would be consistently reliable, equipment from owner-operators could driving was not appropriate. FMCSA workable, and useful yet pose no threat argue that those CMVs are outside the proposes that EOBRs be required to to the driver, his vehicles, his privacy, scope of the remedial provisions select on-duty not-driving as the default or his livelihood. because ownership remains in control of status when the vehicle is not moving On the whole, drivers tended to the lessor, and the carrier has no control for a certain period of time. The EOBR evaluate the commercial vehicle over whether the owner-operator would also advise the driver via audible operations services from the perspective installs the equipment. However, 49 and visible means to enter a new duty of personal experience rather than CFR 376.12(c)(1) requires a motor status when the transmission is placed focusing on the industry as a whole. For carrier using leased equipment to in park, the parking brake is engaged, or example, independent owner-operators, assume ‘‘exclusive possession, control, the ignition is turned off. The driver who have historically been more and use of the equipment’’ for the would still need to enter the duty status skeptical of technology and wary of duration of the lease. Therefore, FMCSA on the EOBR manually if his or her duty intrusion by either the government or proposes that the remedial directive status differed from the on-duty not- trucking companies, reacted more apply to all vehicles used by the carrier driving default setting. We believe this negatively toward the technologies than to perform transportation services on requirement would reduce direct driver did other drivers. the carrier’s behalf. If a motor carrier is interaction with the EOBR, as A second study, required by Congress issued an EOBR remedial directive, then recommended in comments provided by under the Fiscal Year 1995 U.S. it must install (or have installed) EOBRs the IBT and advocacy organizations. Department of Transportation in all vehicles it uses. Owner-operator Although some commenters Appropriations Act, assessed vehicles leased to such a remediated recommended FMCSA mandate EOBRs technological, economic, and carrier would be required to have that would record duty status categories institutional factors requiring EOBRs installed even if the owner- accurately without driver-EOBR consideration if smart-card applications operator holds separate operating interaction, FMCSA is not aware of any were to be implemented. The study authority. Before leasing to a particular such devices in the commercial found that smart-card applications were carrier, an owner-operator should ask marketplace at this time. We request

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public comment on the availability of In prioritizing among carriers for CRs, percent, this pattern of noncompliance such devices in the near future. FMCSA investigators consider a number will potentially affect the carrier’s safety This NPRM also includes a provision of factors, including whether the carrier rating. requiring an EOBR to provide for the has crash involvement, the carrier’s Traditionally, the Agency has relied driver’s review of each day’s record vehicle and driver out-of-service rates, on two of its regulatory powers to deter before submitting it to the motor carrier. Safety Status (SafeStat) information HOS violations and obtain motor carrier As noted previously, the driver would system results, the date and result of the compliance: (i) The issuance of civil be allowed at that time to make previous CR, non-frivolous complaints penalties under 49 U.S.C. 521(b) annotations and amendments to the the Agency has received concerning the followed by enforcement proceedings electronic RODS, but not to amend carrier, and whether the carrier is under 49 CFR Part 386; and (ii) the driving-status information. The EOBR seeking an upgrade to its existing safety issuance of proposed or final must be designed so that if a driver or rating. During CRs, FMCSA or State ‘‘unsatisfactory’’ or ‘‘conditional’’ safety any other person annotates a record in safety investigators examine in detail ratings under 49 CFR Part 385. Motor the device or a support system for the the motor carrier’s compliance with all carrier records examined during Agency device, the annotation does not applicable safety regulations. CRs, however, indicate that some motor overwrite the original contents of the In examining HOS records during carriers routinely violate the HOS record. This would preserve the CRs, safety investigators look at samples regulations despite the Agency’s use of auditability of EOBR records. of drivers’ RODS, checking for these enforcement and compliance violations, accuracy, and completeness. B. Remedies tools. Incidents of log falsification It is worthwhile to note that FMCSA’s continue to be a significant concern, and FMCSA, based on its safety research, method of selecting records during the civil penalties in particular have come believes that motor carriers whose course of a CR has withstood a judicial to be viewed by some carriers— drivers routinely exceed HOS limits or challenge. American Trucking Ass’ns v. particularly those with significant and falsify their HOS records have an Department of Transportation, 166 F. 3d repeated HOS violations—less as a increased probability of involvement in 374 (D.C. Cir. 1999). In its decision, the deterrent than simply as a cost of doing fatigue-related crashes and therefore court recognized the distinctive business. FMCSA therefore concludes present a disproportionately high risk to character of HOS regulations and held that additional regulatory measures are highway safety. Based on the Agency’s that the Agency had acted rationally in needed to improve HOS compliance of analysis of its Motor Carrier assigning two points within its Safety certain motor carriers.4 Management Information System Fitness Rating Methodology (SFRM) (MCMIS) data from CRs conducted since scheme—a double weighting—for a Proposed Trigger for Remedial 1995 on motor carriers operating in pattern of HOS violations. The court Directives interstate commerce, carriers to which a stressed the importance of controlling FMCSA proposes that the trigger for remedial directive would apply under driver fatigue and the fact that the HOS an EOBR notice of remedial directive this proposal have crash rates that are regulations are the only ones dealing and proposed unfitness determination 87 percent higher than average. with driver fatigue. These same patterns FMCSA selects motor carriers to be the ‘‘final determination’’ of one or of HOS violations are the focus of the more pattern violations of any undergo CRs based in part on data EOBR remedial directives proposed in generated during roadside inspections. Appendix C regulation, followed by the this NPRM. discovery of one or more pattern FMCSA and enforcement personnel in During that portion of the CR States receiving Motor Carrier Safety violations of any Appendix C regulation involving HOS records review, safety during a CR completed in the 2-year Assistance Program funds under 49 investigators use uniform sampling period subsequent to the closing date of U.S.C. 31102 enforce motor carrier HOS standards including the number of the CR that resulted in the first final rules through roadside inspections and drivers to be reviewed, the minimum determination. A ‘‘pattern violation,’’ CRs. Unlike CRs, which usually are number of RODS to be checked, and for purposes of the remedial directive, is conducted at a carrier’s principal place other factors designed to focus the defined with respect to Appendix C of business, roadside inspections are investigation on areas where there has regulations as a violation rate equal to performed at a fixed or mobile roadside been probable noncompliance. The or greater than 10 percent of the records facility. Inspectors may perform any of number of drivers whose RODS are reviewed. For example, 25 violations six categories, or levels, of inspection. checked varies depending on the size of out of 100 records reviewed would Level I, II, and III inspections include the carrier (e.g., 0–5 drivers, all drivers’ examination of the driver’s HOS logs; 6–10 drivers, 5 drivers’ logs; 16–50 represent a 25 percent violation rate and compliance, commercial driver’s drivers, 7 drivers’ logs; etc.). The therefore constitute a pattern violation. license, medical certification, and minimum number of RODS reviewed for If the motor carrier failed to install hazardous materials (HM) requirements. part 395 violations also depends on the and use the EOBRs, it would be Level I and II inspections include carrier’s driver population (e.g., 1–5 prohibited from operating in interstate additional factors such as examination drivers, 30 × number of drivers; 6–15 commerce and intrastate operations of parts and accessories necessary for drivers,150 RODS reviewed; 6–15 affecting interstate commerce. Further, safe operation, motor carrier operating drivers, 210 RODS reviewed). if the motor carrier were a for-hire authority and financial responsibility, Investigators generally look at RODS for carrier, it would have its registration and applicable HM inspection items. the 6-month period prior to the CR. revoked. These roadside inspections are intended The investigator prepares a CR report 4 In addition to drawing upon the expertise of to assess the compliance of a company’s for the motor carrier documenting the FMCSA enforcement and compliance personnel, motor vehicles and drivers with FMCSA sample size used, the number of records the Agency solicited and received input from State safety, economic, and hazardous reviewed, and the number of violations enforcement officials regarding mandatory EOBR materials regulations. Where certain discovered under part 395. If the installation for carriers with poor HOS compliance. Representatives from the Nebraska and Washington serious violations are discovered, the violation rate for any ‘‘critical’’ part 395 State Patrols and the Connecticut Department of driver or vehicle may be placed out of regulation (see 49 CFR Part 385 App. B Motor Vehicles served as members of the Agency’s service. § VII) is equal to or greater than 10 EOBR rulemaking team.

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The mandatory EOBR installation scheme, if such a change is deemed during CRs by FMCSA or State safety period would be for 2 years following appropriate, without necessitating an investigators. FMCSA considered, but issuance of the remedial directive. The additional rulemaking change to the rejected, approaches for a remedial two CRs need not be consecutive, so EOBR remedial directives provisions. directives trigger based on roadside long as they occur within the relevant In addition, rather than focusing on inspections or other non-CR procedures. 2-year period. For the purpose of the single violations, FMCSA is looking for Far more roadside inspections than CRs remedial directive, FMCSA would focus patterns of noncompliance. The focus are performed, and these inspections only on part 395 HOS violations where on these violations as a basis for EOBR generate a significant volume of HOS noncompliance relates to management remedial directives is consistent with compliance data. However, certain of and/or operational controls. These are the current safety fitness determination the Agency’s algorithms using these indicative of breakdowns in a motor process and logically related to the data, such as the Driver Safety carrier’s safety management controls structure of current part 385. This Evaluation Area (SEA) component of and considered relevant to the proposed management and control aspect is an SafeStat scores, incorporate both HOS remedial provisions. All violation appropriate focus for the EOBR remedial and some non-HOS violations, such as calculations would be based on, and all program because patterns of commercial driver’s license violations. proposed remedial directives would noncompliance with these types of In addition, roadside inspections are apply to, motor carriers rather than to regulations are linked to inadequate designed to determine the safety status individual drivers. safety management controls and higher of a driver or vehicle at a given point in The proposed EOBR remedial than average crash rates. As stated in time, not to provide, on the basis of a directive would be reserved for carriers Part 385, App. B II(e), ‘‘FMCSA has used single examination, a broad assessment whose safety management controls are patterns of noncompliance with safety of a motor carrier’s general operations seriously deficient. FMCSA bases its management-related regulations since and safety management controls. EOBR proposal on the Agency’s 1989 to determine motor carriers’ CRs, by contrast, are indeed intended authority under 49 U.S.C. 31144 to adherence to the Safety fitness standard to provide a broad assessment of a determine motor carrier safety fitness. in § 385.5.’’ motor carrier’s general operations and This invocation of the Agency’s safety Where a number of documents are safety management controls. They are fitness authority is in keeping with reviewed, as with the HOS component ordinarily conducted at a motor carrier’s FMCSA’s Comprehensive Safety of the CR, a pattern of noncompliance place of business, involve larger Analysis 2010 (CSA 2010), a reform can be established when at least 10 samples of records, examine multiple initiative launched in 2004. The percent of the documents examined vehicles and drivers’ RODS, and ultimate goal of CSA 2010 is reflect a violation of any regulation typically produce a series of violation development of an optimal operational listed in Appendix C to Part 385. findings. Motor carrier safety ratings, as model that will allow FMCSA to focus FMCSA believes that motor carriers calculated under the SFRM, are based its limited resources on improving poor with effective safety management largely on CR data. Given the potential safety performers. For more information controls should be able to maintain a for an EOBR remedial directive to place about CSA 2010, visit http://www. noncompliance rate of less than 10 a serious financial burden on a motor fmsca.dot.gov/safety-security/safety- percent for the Appendix C regulations. carrier, we believe such a directive FMCSA emphasizes that issuance of a initiatives/csa2010listening.htm. should be issued only on the basis of the remedial directive would not preclude This proposal thus focuses on HOS broad scope of operational examination the Agency from also imposing violations where noncompliance relates and extensive record review inherent to to management and/or operational appropriate civil penalties on the carrier the CR process. Although the Agency controls. Violations of only those for HOS violations, just as all motor will continue to compile and use non- regulations listed in proposed new carriers would continue to be subject to CR data as in the past and may consider Appendix C to Part 385 will be counted civil penalties for HOS violations that cumulative roadside data in the future, toward issuance of a remedial directive do not rise to the level of a ‘‘pattern.’’ FMCSA is proposing to use only CR- and proposed unfitness determination Likewise, the Agency’s civil penalty based violations as direct grounds for or a notice of potential remedial policy under section 222 of the Motor issuance of EOBR remedial directives.5 directive applicability (NPRDA). The Carrier Safety Improvement Act of 1999 Additionally, the Agency proposes Appendix C regulations consist of all (Pub. L. 105–159, 113 Stat. 1748) not to issue a remedial directive until the part 395 regulations that currently (MCSIA) would remain in effect for all after the motor carrier has committed a appear in Part 385 Appendix B, section carriers. Under this policy, as explained pattern violation of an Appendix C VII. These 24 provisions, which also are in ‘‘Section 222 of the Motor Carrier regulation twice within a 2-year period. classified as ‘‘critical’’ regulations under Safety Improvement Act of 1999; FMCSA considered the option of the current rules, are the HOS violations Clarification of Agency Policy imposing the EOBR remedial directive that FMCSA has determined reflect Statement’’ (69 FR 77828, Dec. 28, after a single 10 percent violation but deficiencies in safety management or 2004), the Agency imposes a maximum rejected this alternative because the operational controls. (See Part 385, App. civil penalty on motor carriers B, II(c); 62 FR 60035 at 60044, Nov. 6, committing three violations of the same Agency believes public safety is best 1997.) They are therefore well suited to regulatory part within 6 years. In served by placing its focus on repeat use as part of the EOBR remedial proposing a shorter, 2-year period violators of Appendix C regulations. directives trigger. In order to allow during which discovery of one or more The vast majority of motor carriers maximum flexibility for the work of the pattern violations by the carrier would strive to comply with the HOS CSA 2010 initiative noted previously, trigger a remedial directive, FMCSA regulations. The selected, ‘‘2 x 10’’ however, the Agency is proposing to intends to supplement, rather than approach would allow the Agency to duplicate and house these 24 negate, the Agency’s civil penalty policy strengthen its safety oversight yet avoid regulations in a separate Appendix C. under MCSIA section 222. 5 The Agency would continue to capture and FMCSA intends this approach to permit The proposed remedial directives are make use of this valuable roadside input indirectly a significant future revision of the predicated on pattern violations of by using SafeStart results as a basis for selecting Agency’s acute and critical regulatory Appendix C regulations discovered carriers for CRs.

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penalizing carriers that demonstrate violations must occur, the Agency Installation, Use, and Maintenance of overall compliance with the HOS rules. would create a window wide enough for Mandatory EOBRs As noted earlier, FMCSA is aware of FMCSA or State enforcement officials to Under FMCSA’s proposal, motor the potential financial burden the EOBR perform at least two CRs, at current CR carriers subject to a remedial directive remedy may place on some motor rates, on over 90 percent of carriers with would be required to install § 395.16- carriers. By requiring a second ‘‘strike,’’ indicia of poor driver safety. At the compliant devices in all of their CMVs. we intend to afford carriers fair warning same time, a potential 2-year interim These carriers would be required to use and an opportunity to adopt new or between the Agency’s initial findings the EOBRs to record their drivers’ HOS, additional safety management steps, if and its issuance of remedial directives review the EOBR records for HOS that is their choice, to improve their would be short enough to preserve the compliance, and take appropriate HOS compliance and possibly avoid directives’ efficacy in remedying actions with respect to drivers found in receiving a remedial directive. The two- repeated noncompliance. The proposed violation. They also would be required strike approach is also intended to work 2-year window for Appendix C to submit documentation demonstrating in tandem with the proposed EOBR violations under the EOBR remedial their continued use of the EOBRs for incentives by encouraging carriers to installation provision should, in these purposes. Failure or refusal to use install EOBRs voluntarily following the addition to its advantages as a EOBRs in this manner during the first final determination that a pattern compliance improvement strategy, required period or to document such violation of an Appendix C regulation impose lower recordkeeping and related use would subject the motor carrier to has occurred. administrative costs on motor carriers an immediate out-of-service order. The Agency also considered, but than the comparable ‘‘multi-strike,’’ 6- Carriers also would be required to rejected, a proposal to raise the year period applied in the civil penalty maintain the devices in good working threshold pattern violation rate for context under section 222 of MCSIA. order and to repair or replace any Appendix C regulations to 20 percent. A The proposed 2-year window would malfunctioning devices within 14 statistical analysis of motor carriers that be measured from the closing date of the calendar days. During any time an would have been affected, over the 3- first CR in which one or more pattern EOBR is not functioning, and a spare year period 2003–2005, by a ‘‘2 x 20’’ violations of any Appendix C regulation device is not available, the Agency compared with a ‘‘2 x 10’’ trigger were discovered. If there is a final would require preparation of a paper scheme showed that the former determination of any pattern violation RODS. Failure to maintain the devices approach would have resulted in of an Appendix C regulation, and if, properly could likewise subject the approximately 55 percent fewer EOBR within 2 years following the first CR, the carrier to an immediate out-of-service remedial directives (577 versus 1,288). carrier has any subsequent CRs in which order applicable to some or all of its As previously noted, MCMIS data one or more pattern violations of any vehicles and operations. indicate that carriers to which a Appendix C regulations are discovered, Following the same schedule remedial directive would apply under the carrier would be subject to issuance currently applicable to the issuance of the ‘‘2 x 10’’ proposal have a of a remedial directive and proposed proposed and final safety ratings, motor significantly higher crash rate than the unfitness determination. carriers potentially subject to remedial average crash rate for interstate carriers A ‘‘final determination,’’ for purposes directives would have 60 days (45 days that have had a CR since 1995. The of part 385 subpart F, would include: (1) for motor carriers transporting Agency believes that significantly An adjudication under new part 385 passengers or placardable quantities of lowering the EOBR remedial installation subpart F upholding an NPRDA or hazardous materials) after the date of rate among such carriers by adoption of remedial directive and proposed the notice of remedial directive to a higher, ‘‘2 x 20,’’ threshold would unfitness determination; (2) the install § 395.16-compliant EOBRs in represent an unwarranted missed expiration of the period for filing a their CMVs and to submit proof of opportunity to improve motor carrier request for administrative review of an installation to FMCSA. The 45/60-day safety. NPRDA or remedial directive and period would commence upon Finally, the Agency considered and proposed unfitness determination under FMCSA’s issuance of an NPRDA or a rejected the option of requiring three 10 subpart F; or (3) the entry of a notice of remedial directive and percent pattern violations. We settlement agreement stipulating that proposed unfitness determination determined this protracted trigger, in the carrier is subject to mandatory EOBR following the CR. During this period the combination with a 2-year window, installation, use, and maintenance carrier could seek administrative review would not result in sufficient numbers requirements. of the CR findings under new proposed of EOBR installations to effectively Following the first CR in which any § 385.517, but no reviews based on address the problem of recurring pattern violation of an Appendix C corrective action (comparable to current noncompliance. Projections of the regulation is discovered, the Agency § 385.17) would be permitted. anticipated findings of pattern would issue the carrier full and fair The proposal would require a motor violations of Appendix C regulations do notice that a repeat of that finding carrier subject to a remedial directive to not support the use of a 3-year or longer during the subsequent 2 years will verify EOBR installation in all of the 6 window. As noted previously, the 2- result in the issuance of an EOBR carrier’s CMVs within the 45/60-day year period is significantly shorter than remedial directive. (49 CFR 385.507) period discussed previously. the 6-year period that the Agency uses The NPRDA would afford carriers Verification could be accomplished for its civil penalty policy under section desiring to avoid a mandatory either through a visual and operational 222 of MCSIA. installation directive an opportunity to inspection of the carrier’s CMVs by By establishing a 2-year period within improve their HOS compliance FMCSA or State enforcement personnel which the two CR-based pattern practices. It would explain the future or by submission of required circumstances that would trigger documentation to FMCSA. The 6 Of 2,457 poor Driver Inspection Indicator motor carriers (those in the poorest 25 percent) that issuance of a remedial directive and documentation would consist of underwent two or more CRs during 1999–2005, describe generally the CR findings that receipts for device purchases and 2,386 had their two CRs within a 24-month period. prompted the issuance of the NPRDA. installation work, if available, digital or

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other photographic evidence of the determination through citation of the demonstrate that the carrier and its installed devices, and documentation appropriate regulation in Appendix C. employees understand how to use the linking the EOBR serial number with AOBRDs and the information derived Limited Exemption for AOBRD Users the vehicle identification number of the from them. The carrier’s HOS CMV into which the device has been If a motor carrier currently using compliance would be subject to strict installed. If no receipt was submitted for monitoring devices that are not FMCSA oversight, and the Agency an installed device or the installation compliant with new § 395.16 is issued could reinstate the remedial directive at work, the carrier would be required to an EOBR remedial directive, the motor any time if additional significant HOS submit a written statement explaining carrier generally would be required to noncompliance were discovered. This who installed the devices, how many install, use, and maintain devices proposed exemption would not apply to devices were installed, the manufacturer meeting the § 395.16 requirements. If a vehicles manufactured more than 2 and model numbers of the devices carrier with AOBRDs installed in its years after the effective date of the installed, and the vehicle identification CMVs demonstrated a pattern of proposed rule. numbers of the CMVs in which the Appendix C regulatory violations devices were installed. sufficient to result in a remedial Revised Safety Fitness Determinations Either FMCSA or State enforcement directive, the carrier’s use of the older Under Part 385 personnel would perform inspections to generation devices would demonstrably assess whether the EOBRs were have failed to remedy its safety Section 4009 of TEA–21 amended 49 properly installed and are operating management deficiencies. The Agency U.S.C. 31144 to require the Secretary of correctly. Carriers issued remedial therefore starts from the position that Transportation to maintain, by directives could request these the same remedial directive should be regulation, a procedure under 49 U.S.C. inspections instead of submitting the issued to an AOBRD-using carrier as to 31144(b) for determining the safety above documentation. The proposed one with no devices installed, and the fitness of an owner or operator of rule would revise 49 CFR Part 350 to carrier would be required to install CMVs.7 The Agency implemented this add a new requirement that States EOBRs compliant with proposed new requirement in its Safety Fitness receiving Motor Carrier Safety § 395.16. Procedures final rule, published on Assistance Program funds under 49 In addition, one goal of this proposed August 22, 2000 (65 FR 50919). This U.S.C. 31102 provide such inspection rulemaking is to encourage migration, rule provided that the Agency will use services. over time, toward use of the newer an ‘‘unsatisfactory’’ rating assigned FMCSA proposes that those carriers generation devices. These devices under the SFRM in part 385 as a directed to install EOBRs in their CMVs would be designed to meet performance determination of ‘‘unfitness.’’ be required to use and maintain the standards that FMCSA concludes are This NPRM would amend the safety devices in their vehicles for 2 years. The more appropriate for HOS monitoring fitness standard at 49 CFR 385.5 and Agency believes this period would than the standards adopted under make necessary modifications to the allow affected drivers and motor carrier § 395.15 in 1988. Further, the increased safety fitness determination employees to become familiar with the uniformity of performance gained by procedures.8 The amended fitness devices and enable the carrier to begin phasing out the older devices would standard would provide an additional realizing improved HOS compliance. likely make enforcement and carrier requirement that CMV owners and The Agency also believes that, for personnel more familiar with the operators must meet, independent of carriers wishing to remove the devices monitoring devices. This should their achieving a ‘‘satisfactory’’ or and return to use of paper RODS as soon improve compliance and enforcement ‘‘conditional’’ safety rating, in order to as possible, a 2-year installation period efficiencies. demonstrate safety fitness. The Agency’s Notwithstanding these considerations, is not unduly harsh. The Agency three-part safety rating scheme, as set requests comment on the appropriate FMCSA appreciates that some carriers have made a significant investment in duration of mandatory EOBR 7 monitoring devices that are compliant Prior to the 1998 TEA–21 amendment, 49 U.S.C. installation, use, and maintenance 31144 applied to ‘‘owners and operators of under the proposed remedial directives. with current regulations. Indeed, commercial motor vehicles, including persons FMCSA in the past has encouraged seeking new or additional operating authority as Scope carriers to install and use these devices. motor carriers.’’ As amended, the section now refers The remedial directives provisions of Moreover, the cause of the carrier’s to these entities as ‘‘owner[s] or operator[s]’’ of commercial motor vehicles, but not as ‘‘motor the proposed rule would apply to all persistent HOS noncompliance may be carriers.’’ Although the congressional committee carriers subject to the requirements of unrelated to the additional features that reports provide no explanation of this change, part 395, as specified in section 395.1 devices compliant with § 395.16 offer FMCS believes the change was made to eliminate The regulations listed in Appendix C over the § 395.15-compliant AOBRDs. an anomaly. Under 49 U.S.C. chapter 311, the term ‘‘motor carrier’’ appeared only in section 31144; it incorporate all applicable revisions to The problem could be more managerial was not included in the section 31132 definitions. the hours-of-service rules published in than technical, and use of newer devices The Motor Carrier Safety Act of 1984, from which the Federal Register on August 25, 2005 might not be the answer. chapter 311 was derived, used the jurisdictional (70 FR 49978). All revisions to the FMCSA therefore proposes to suspend term ‘‘commercial motor vehicle.’’ ‘‘Motor carrier’’ and ‘‘motor private carrier’’ were defined separately critical part 395 regulations (those listed enforcement of otherwise applicable in those provisions of title 49 of the United States in Part 385, App. B, section VII) that remedial directives, under certain Code administered by the Interstate Commerce were effected in the August 25, 2005, conditions and at FMCSA’s discretion, Commission; the definition are now codified at 49 final rule are included in the proposed where motor carriers had installed U.S.C. 13102. The FMCSRs have long treated owners and operators of CMVs as ‘‘motor carriers’’ Appendix C to Part 385. Thus, pattern devices compliant with § 395.15 (or (see 49 CFR 390.5). The regulatory text of 49 CFR violations of any Appendix C pursuant to waiver of part of all of Part 385 uses the term ‘‘motor carrier’’ as equivalent regulations arising from violations of the § 395.15) at the time of the CR to ‘‘owners and operators’’ specified by amended new sleeper berth, short-haul, or other immediately preceding the remedial section 31144. 8 Current regulations contemplate such revisions revised HOS provisions could result in directive. Motor carriers seeking this to the fitness determinations, and the SFRM ‘‘has issuance of an NPRDA or remedial non-enforcement would be required to the capability to incorporate regulatory changes as directive and proposed unfitness apply to FMCSA in writing and to they occur.’’ Part 385 App. B VI (a).

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forth in the SFRM, would remain reviews under § 385.15 and corrective- conditions of the remedial directive. unchanged. action reviews under § 385.17. The directive would remain in effect for Under the SFRM, the Agency assigns However, as previously noted, a period of 2 years following the date of FMCSA is proposing to revise the safety points to motor carriers within six issuance. If a carrier failed or refused to fitness standard in § 385.5. If a carrier distinct analytical categories, or use EOBRs for HOS compliance during were operating under an EOBR remedial the required period, or failed to ‘‘factors,’’ based on the number of directive, an overall safety rating of document such use sufficiently, the regulatory violations and level of ‘‘satisfactory’’ or ‘‘conditional’’ under proposed unfitness determination compliance with other criteria, as the SFRM, while still necessary to meet would be reinstated, and the carrier determined in a CR. The ratings for the the safety fitness standard, would no would be subject to an immediate out- six factors are then entered into a rating longer be sufficient. A second condition of-service order. A carrier could lift the table that establishes the motor carrier’s would also have to be met—that the prohibition on its operations at any time overall safety rating of ‘‘satisfactory,’’ carrier be in compliance with all by providing proof that the devices had ‘‘conditional,’’ or ‘‘unsatisfactory.’’ applicable requirements of part 385 been installed and complying with the Currently, a carrier must maintain either subpart F, Remedial Directives. Of other terms and conditions of the a ‘‘satisfactory’’ or ‘‘conditional’’ safety course, in the absence of a notice of remedial directive. rating to continue operating in interstate remedial directive and proposed commerce and intrastate operations determination of unfitness under Appeal Rights and Administrative affecting interstate commerce. A carrier subpart F, the Agency’s notice of Review issued a proposed ‘‘unsatisfactory’’ (or proposed or final safety rating would If a motor carrier believed the Agency ‘‘conditional’’) rating may challenge the function, as it currently does under had committed an error in issuing either rating through an administrative review § 385.11, as the notice of safety fitness an NPRDA or a notice of remedial under § 385.15; or the carrier may seek determination. directive and proposed unfitness to have the proposed rating changed Following a CR resulting in findings determination, the carrier could request based upon corrective action under that potentially subject the motor carrier an administrative review under § 385.17. Unless a proposed to a remedial directive, the carrier § 385.517. Challenges to the NPRDA or ‘‘unsatisfactory’’ rating is changed under would be issued a written notice of notice of remedial directive and § 385.15 or § 385.17, however, the remedial directive based upon the proposed unfitness determination carrier is prohibited from operating a pattern of violations of Appendix C should be brought within 15 days of the CMV on the 61st day (or the 46th day regulations. The notice of remedial date of the NPRDA or notice of remedial for carriers transporting passengers or directive would require the carrier to directive. This timeframe would allow placardable quantities of hazardous install EOBRs in all of its CMVs, FMCSA to issue a written decision materials) after the date FMCSA issued provide proof of installation within 60 before the prohibitions in § 385.519 go the proposed ‘‘unsatisfactory’’ safety days after issuance of the notice of into effect. The filing of a request for rating. (49 CFR 385.13(a)) Pursuant to remedial directive (45 days for hazmat administrative review under § 385.517 section 4104 of SAFETEA–LU, the and passenger carriers), and provide within 15 days of the notice of remedial Agency will revoke the registration of a such other periodic reports as the directive would stay the finality of the motor carrier prohibited from operating FMCSA Enforcement Division proposed unfitness determination until in interstate commerce, and in intrastate determines are appropriate. The notice the Agency had ruled on the request. operations affecting interstate of remedial directive would explain Failure to petition the Agency within commerce, for failure to comply with how the carrier could challenge the the 15-day period may prevent FMCSA the safety fitness requirements of 49 directive and the time limits within from ruling on the request before the U.S.C. 31144. (49 U.S.C. 13905(e)) which challenges could be filed. prohibitions go into effect. However, The proposed unfitness determination within 90 days of the date of issuance Nothing in this proposal would would advise the motor carrier that if it of the NPRDA or notice of remedial change any of the above requirements or failed or refused to install § 395.16- directive and proposed unfitness procedures. The current procedures for compliant EOBRs and to provide proof determination, the carrier may still file calculation of motor carrier safety of installation as required under the a request for administrative review, ratings, including the three-tier SFRM, remedial directive, FMCSA would deem although if such request is not filed would remain unchanged. Motor the carrier unfit on the 60th day (45th within the first 15 days the Agency carriers would continue to be assigned day for hazmat and passenger carriers) would not necessarily issue a final ‘‘satisfactory,’’ ‘‘conditional,’’ or after issuance of the notice, and the determination before the prohibitions go ‘‘unsatisfactory’’ safety ratings under carrier would be prohibited from into effect. Challenges to issuance of the §§ 385.7, 385.9, and the SFRM set forth operating in interstate commerce, and in remedial directive and proposed in Appendix B of Part 385, and carriers intrastate operations affecting interstate unfitness determination would be rated ‘‘unsatisfactory’’ would continue commerce, on the 61st (or 46th) day. It limited to findings of error relating to to be prohibited from operating a CMV would also advise the carrier that, if it the CR immediately preceding the and engaging in contracts with Federal was subject to the registration notice of remedial directive. agencies as provided in § 385.13. requirements under 49 U.S.C. 13901, its The proposed rule would not affect FMCSA would continue to issue registration would be revoked on the current procedures under § 385.15 for notifications of safety ratings under 61st (or 46th) day for failure or refusal administrative review of proposed and § 385.11 9 and to perform administrative to comply with the remedial directive. final safety ratings issued in accordance If the carrier installed the EOBRs in with § 385.11. The Agency is proposing 9 The proposed rule would amend the section all of its CMVs and supplied FMCSA non-substantive revisions to § 385.15(a), heading of § 385.11 to clarify that the notices issued with timely and necessary proof of however, solely to correct two pursuant to that section relate only to a motor installation, then the proposed typographical errors. carrier’s ‘‘safety rating’’ under § 385.5(a) and not to the Agency’s ‘‘safety fitness determination’’ ‘‘unfitness’’ determination would be A motor carrier subject to a remedial regarding the carrier, which encompasses both conditionally rescinded, provided the directive would not be permitted to § 385.5(a) and (b). carrier met all other terms and request a change to the remedial

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directive or proposed determination of investigator finds 25 out of 150 logbooks and proposed unfitness determination unfitness based upon corrective actions. examined reflect a violation of based upon the prior final In contrast to § 385.17, under which the § 395.3(a)(2) (requiring or permitting determination under § 385.517. Agency considers corrective actions driving after the end of the 14th hour Scenario 3 taken in reviewing a carrier’s request for after coming on duty), i.e., a pattern a safety rating change, the only violation of an Appendix C regulation. A CR in 2007 finds a 10 percent or ‘‘corrective action’’ the Agency would FMCSA issues an NPRDA warning the greater violation rate for an Appendix C take into account in conditionally carrier that it will be subject to an EOBR regulation (which is also a critical HOS rescinding a proposed unfitness remedial directive if another CR within violation), plus multiple violations of determination under subpart F would be 2 years again finds a pattern violation of other FMCSRs, resulting in a proposed the carrier’s installation of § 395.16- any Appendix C regulation. The motor overall safety rating of ‘‘unsatisfactory.’’ compliant EOBRs and satisfaction of the carrier does not challenge the issuance As in scenarios 1 and 2, FMCSA also other conditions of the remedial of the NPRDA. A subsequent CR of the issues the carrier an NPRDA. The carrier directive. The Agency may, carrier in 2008 discloses a 14 percent takes immediate steps to improve its nevertheless, consider a carrier’s violation rate for § 395.8(e) (false logs), safety management practices and within installation and use of EOBRs as another pattern violation of an 15 days requests a safety rating change ‘‘relevant information’’ that could Appendix C regulation. The carrier is under § 385.17. The carrier does not contribute to an improvement of a issued a notice of remedial directive to challenge the NPRDA, however. A carrier’s safety rating under § 385.17(d). install EOBRs within 60 days and second CR within 60 days of the first An upgraded safety rating based upon provide proof of installation. finds improved regulatory compliance, corrective action under § 385.17 would Simultaneously, the carrier is issued a including no HOS violations, and have no effect, however, on an proposed unfitness determination. The FMCSA upgrades the carrier’s safety otherwise applicable NPRDA, remedial carrier fails or refuses to install the rating to ‘‘conditional.’’ A third CR in directive, or proposed unfitness device(s), or fails to provide proof, and 2008, however, again finds a 10 percent determination. A safety rating upgraded is ordered to cease interstate operations, or greater violation rate for an Appendix to ‘‘conditional’’ would be necessary, and intrastate operations affecting C regulation. The carrier is issued a but not sufficient, to meet the safety interstate commerce, on the 61st day notice of remedial directive, ordering fitness standard in proposed § 385.5. after issuance of the notice of remedial installation of EOBRs within 60 days in directive and proposed unfitness all of the carrier’s CMVs, and a Continuing EOBR Use, Maintenance, determination. Moreover, because the proposed determination of unfitness. and Documentation Requirements carrier is required to be registered under The carrier installs the devices and Motor carriers would have up to 60 49 U.S.C. 13901, its registration is provides FMCSA with sufficient proof days (45 days for hazmat and passenger revoked on the 61st day. of installation. The proposed carriers) following issuance of the notice determination of unfitness is Scenario 2 of remedial directive to install EOBRs conditionally rescinded, and the carrier compliant with § 395.16. Once a motor As in Scenario 1, a CR in 2007 continues to operate in interstate (and carrier had installed the devices, the discloses a pattern violation of an intrastate) commerce. carrier would be required to maintain Appendix C regulation. Because, under Scenario 4 the devices in good working order, to Part 385 Appendix B § II (h), that same HOS violation also constitutes a As in Scenario 3, a CR in 2007 document its drivers’ use of the devices discloses a 10 percent or greater for recording hours of service, and to ‘‘pattern of noncompliance with a critical regulation relative to Part 395,’’ violation rate of an Appendix C review the EOBR records of its drivers regulation, plus such other FMCSR for HOS compliance. This it is assessed two points (and an ‘‘unsatisfactory’’ Factor Rating) under violations that the carrier is assigned a documentation requirement would be proposed overall safety rating of satisfied by the carrier’s ability to the Operational Factor of the SFRM, just as it would be under the current rule. ‘‘unsatisfactory’’ under § 385.11. The present, upon demand, electronic RODS carrier again is issued an NPRDA in The carrier thus receives an overall in the format prescribed in proposed accordance with § 385.507(a). The safety rating of ‘‘conditional’’ and is new Appendix A to Part 395. If, carrier immediately initiates safety issued an NPRDA, as in Scenario 1. following receipt of an EOBR remedial management improvements and, in However, in this scenario the carrier directive, a carrier were discovered to be accordance with § 385.17, within 15 requests an administrative review of operating without a functioning days from the date of the notice of both the NPRDA, under § 385.517, and § 395.16-compliant device in one or proposed safety rating requests a change the ‘‘conditional’’ safety rating under more of its CMVs, the carrier would be to its safety rating based on corrective § 385.15. The carrier prevails on its subject to an immediate out-of-service action. The Agency begins another CR challenge in the administrative review order until it installed the devices. 43 days after the date of the notice of under § 385.15 but loses its challenge proposed safety rating, which shows Example Remedial Directives Scenarios under § 385.517. The Agency changes improvements in non-HOS areas but FMCSA offers the following four the carrier’s overall safety rating to again discloses a 10 percent or greater scenarios as examples of how the satisfactory. However, the NPRDA has violation rate for an Appendix C proposed remedial directive procedures not been rescinded and becomes a final regulation. Based upon the motor would operate: determination. In 2008, FMCSA carrier’s improvements in the other conducts a second CR, which also finds Scenario 1 safety areas, FMCSA upgrades the a pattern violation of an Appendix C overall safety rating to ‘‘conditional’’ During a 2007 CR on a motor carrier regulation. The Agency issues the and the carrier continues in operation. of non-hazmat property (not a hazmat or carrier a notice of remedial directive passenger carrier) 10 an FMCSA safety At the same time, because of the HOS Thus, 60-day periods, rather than 45-days periods, violations discovered in the second CR, 10 All four scenarios assume the motor carrier is would apply under §§ 385.11, 385.13, 385.15 and the Agency issues a notice of remedial not a carrier of passengers or hazardous materials. 385.17. directive and proposed determination of

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unfitness. The carrier fails to install be random across all areas of a carrier’s procedures call for FMCSA or State EOBRs within 60 days following the operation. Instead, FMCSA’s procedures safety investigators to focus their sample second CR, and it also fails to seek for CRs direct safety investigators to of HOS records on the RODS of drivers administrative review of the remedial focus first on known problem areas and involved in interstate recordable directive in accordance with § 385.517. drivers. FMCSA takes this approach crashes, drivers placed out of service for The carrier is therefore placed out of because it is in the interest of public hours-of-service violations during service on the 61st day. safety to focus the Agency’s limited roadside inspections, drivers discovered resources on drivers most likely to be in to have poor driving records through C. Incentives violation of the regulations. If the Commercial Driver’s License Background number of HOS violations discovered Information System checks, recently using FMCSA’s focused sampling policy hired drivers, and drivers having a high FMCSA recognizes that many motor equals or exceeds 10 percent of the probability of excessive driving. This carriers are deterred from voluntary records reviewed, the motor carrier is procedure makes efficient use of staff installation of EOBRs because they automatically assigned a proposed resources and helps ensure the CR believe this would place them at a ‘‘conditional’’ safety fitness rating. report clearly identifies known problem competitive disadvantage to carriers not Thus, a carrier’s overall safety fitness areas for corrective action and attention using EOBRs. Motor carriers believe rating can be adversely affected by by motor carrier management. We there is an ‘‘uneven playing field’’ in FMCSA’s reviewing only operational intend to continue this protocol as a which those with EOBRs are held to a areas already identified as problematic. standard operating procedure for motor higher level of compliance. Qualcomm ATA unsuccessfully challenged the carriers using traditional paper RODS. described this perceived inequity in its Agency’s HOS review techniques in However, when motor carriers docket comments: ‘‘Qualcomm contends 1997, arguing that the Agency’s CR voluntarily install EOBRs, the HOS that in general the industry’s reluctance procedures ‘‘[l]ack standards for portion of a CR can be much more to employ technology to verify ensuring that only statistically reliable efficient and less resource intensive compliance is not based in being samples of driver logs and other carrier than the review of a carrier using adverse to use of technology, but in records are relied upon in safety CRs. traditional paper RODS and supporting being adverse to compliance This deficiency would result in a safe documents. In fact, the efficiency of the enforcement not being conducted on a carrier receiving an unwarranted review of EOBR records for 11-, 14-, and level playing field.’’ adverse safety rating and having to bear 70-hour HOS violations can often be We believe this concern may have the heavy burdens that accompany such improved by use of the motor carrier’s some merit. Because of the extensive a rating.’’ [American Trucking Ass’ns, ‘‘exception reports,’’ which allows more supporting documentation EOBRs are Inc. v. U.S. Dept. of Transp., 166 F.3d time to review records for accuracy and capable of producing, even minor 374 (D.C. Cir. 1999)]. FMCSA’s falsification. FMCSA therefore proposes violations of the HOS regulations can be predecessor Agency, FHWA, an alternative approach to CRs and the more easily detected if the carrier uses successfully defended the existing issuance of safety fitness ratings that EOBRs. In fact, these violations are often rating and sampling techniques against would be employed in limited instances identified in automated reports that this challenge by citing the safety as an incentive, strictly and solely for motor carriers can set up as part of their benefits of focusing Agency resources motor carriers that voluntarily install, EOBR monitoring systems. This suggests on the drivers and vehicles most likely use and maintain EOBRs meeting the EOBRs do what they are intended to to be in regulatory violation. In its final requirements of proposed § 395.16, and (and would accomplish under the rule, ‘‘Safety Fitness Procedure; Safety for owner-operators leased to such remedial provisions discussed Ratings,’’ FHWA had clarified the carriers. This proposed approach to previously)—make it more difficult to purpose of a CR: ‘‘The overall safety HOS records review during CRs would exceed the HOS limitations of the posture of the motor carrier is not being not be available to carriers using FMCSRs. measured during the CR, rather the AOBRDs compliant with § 395.15. The inability to conceal even minor adequacy of the carrier’s safety Under the Agency’s proposed HOS violations can increase the chances management controls is being assessed approach, the first course of action of receiving a less than satisfactory pursuant to 49 CFR part 385.’’ (62 FR would be to conduct the HOS portion of safety fitness rating in the event of a 60035 at 60039, Nov. 6, 1997) the CR using standard, focused CR—which in turn could hinder the Despite these reassurances, many in sampling policies and procedures and carrier’s ability to compete. Among the motor carrier industry believe there taking into account known violations of other things, a less than satisfactory nevertheless exists a public perception, critical part 395 regulations. If the safety rating prevents the carrier from with resulting consequences, that the focused sample of HOS records resulted maintaining self-insurance and may safety fitness rating measures a carrier’s in a 10 percent or greater violation rate, prevent it from maintaining contracts overall safety posture, as opposed to the then a separate random sample of HOS with major shippers. Civil penalties efficacy of its safety management records would be selected for review under 49 U.S.C. 521(b)(2) may also be controls. We believe some motor based upon the minimum sample size imposed for violations discovered, even carriers may be more willing to recommended in FMCSA’s Field when the safety rating is unaffected. voluntarily install EOBRs if, under Operations Training Manual. The FMCSA believes these fears of certain conditions, FMCSA offered the results of both samples, focused and receiving an adverse safety fitness rating carrier incentives to make this safety random, would be cited on the CR as a consequence of EOBR use may be commitment. report, but only the random sample compounded by motor carrier industry results would be used to assign the concerns with Agency policies and Proposed Incentives carrier a safety fitness rating under part procedures for assigning safety fitness 1. As indicated previously, FMCSA 385. This incentive would not be ratings. These concerns are long- conducts focused sampling of carrier available to motor carriers and owner- standing. In particular, many motor HOS records during CRs and believes operators that have been issued a carriers believe the Agency’s HOS this approach is in the best interest of remedial directive to install, use, and sampling techniques during CRs should public safety. FMCSA’s routine CR maintain EOBRs.

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FMCSA believes this random review to maintain only such additional EOBR use (see section 13.3 above), or incentive for motor carriers voluntarily supporting documents as are necessary other safety and driver health benefits using EOBRs would mitigate industry to verify on-duty not-driving activities inherent in EOBR technology, would concerns that currently tend to and off-duty status. The proposed provide a sufficient basis for the Agency discourage EOBR use. FMCSA believes § 395.11 would not provide a blanket to allow drivers using the devices to that, over time, widespread use of exemption from all supporting extend their 14-hour driving window EOBRs will improve HOS compliance documents requirements because, even under 49 CFR 395.3(a)(2). Would using and reduce fatigue-related crashes. This for carriers using EOBRs, some an EOBR reduce driver fatigue so that incentive, which will foster broader additional supporting documentation relief could be afforded under the EOBR use within the industry, is thus (e.g., driver payroll records, fuel sleeper berth provisions in 49 CFR in keeping the Agency’s mission of receipts) is still necessary to verify on- 395.1(g)(1)? Likewise, would a motor promoting motor carrier safety. At the duty not-driving activities and off-duty carrier’s voluntary use of EOBRs same time, by continuing to require status. The proposed incentive would, provide sufficient assurance of safety investigators to perform a focused however, significantly reduce the compliance with HOS regulations that sample of HOS records as the first step volume of required supporting FMCSA could safely forgo review of in a CR, FMCSA would meet its initial documents for those carriers voluntarily particular segments of the carrier’s responsibility to detect and respond to installing EOBRs. This incentive would operations during a compliance review? known violations. The random review not be available to motor carriers subject We encourage both industry and safety incentive would apply only to carriers to remedial directives to install, use, groups to provide recommendations that voluntarily installing and using EOBRs, and maintain EOBRs under part 385 will enable FMCSA to craft a rule that not to individual drivers. subpart F. takes full advantage of EOBR technology FMCSA emphasizes that the Agency FMCSA seeks comment on this in the safety program. would continue to bring civil penalty proposal as well. The Agency issued a enforcement cases against both drivers supplemental notice of proposed VI. Rulemaking Analyses and Notices and carriers for HOS violations rulemaking concerning HOS supporting Executive Order 12866 (Regulatory discovered during the initial logbook documents on November 3, 2004 (69 FR Planning and Review) and DOT analysis, even though that analysis will 63997) and anticipates publication of Regulatory Policies and Procedures not be used for purposes of determining the final rule in the near future. Under the carrier’s safety rating. The that rule, motor carriers may, in Under Executive Order 12866 (58 FR responsibility for assuring HOS accordance with the exemption 51735, October 4, 1993) and DOT compliance lies with both the carrier procedures in part 381, seek FMCSA policies and procedures, FMCSA must and the driver, and FMCSA would approval to meet the § 395.8(k) determine whether a regulatory action is therefore continue to bring enforcement requirements by using electronic ‘‘significant,’’ and therefore subject to cases against both carriers and drivers systems that incorporate GPS or other OMB review and the requirements of for violations discovered during the electronic location-referencing and the Executive Order. The Order defines initial focused sample analysis. These tracking technology. As noted in the ‘‘significant regulatory action’’ as one findings would be entered into the section titled Incentives To Promote likely to result in a rule that may: Agency’s SafeStat system and would EOBR Use, the Agency will consider (1) Have an annual effect on the increase the probability of additional public comments to today’s NPRM in economy of $100 million or more or CRs for the carrier. FMCSA believes the determining whether adjustments to the adversely affect in a material way the adverse financial consequences, the supporting documents exemption economy, a sector of the economy, negative SafeStat data, and the procedures may be necessary. FMCSA productivity, competition, jobs, the increased likelihood of undergoing requests public comment on this environment, public health or safety, or additional compliance reviews would proposed incentive and the random State, local, or tribal government or continue to give the carrier an incentive sample incentive discussed above. communities. to correct any HOS problems cited on 3. The Agency is interested in (2) Create a serious inconsistency or the CR report. identifying other incentives under otherwise interfere with an action taken FMCSA seeks public comment on this which carriers could be relieved of or planned by another Agency. issue. We are particularly interested in regulatory burdens made unnecessary commenters’ views on whether the by the direct or indirect safety benefits (3) Materially alter the budgetary proposed approach would provide that EOBR technology provides. Such impact of entitlements, grants, user fees, motor carriers with incentives to incentives could therefore raise the or loan programs or the rights and voluntarily install EOBRs. productivity of both carriers and drivers obligations of recipients thereof. 2. As an additional incentive to safely and without impairing driver (4) Raise novel legal or policy issues promote the installation and use of health. We therefore solicit comments arising out of legal mandates, the EOBRs by motor carriers, the Agency is and suggestions about other possible President’s priorities, or the principles proposing a new 49 CFR 395.11 to incentives in addition to the two set forth in the Executive Order. provide partial relief, for carriers that identified. Because of the Agency’s FMCSA has determined that, although voluntarily install a device compliant limited experience with the benefits of this proposed rule would not have an with § 395.16, from the supporting EOBR technology, we request any annual effect of $100 million or more, documents requirements under 49 CFR evidence demonstrating that voluntary it is a significant regulatory action 395.8(k). EOBRs meeting the use of EOBRs could mitigate safety risks within the meaning of the Executive requirements of § 395.16 produce associated with extended driving or on- Order and under the regulatory policies regular time and CMV location position duty time, such that carriers using and procedures of DOT because of the histories sufficient to verify adequately EOBRs might be afforded added level of public interest in rulemakings a driver’s on-duty driving activities. scheduling flexibility under the HOS related to hours-of-service compliance. Motor carriers voluntarily maintaining rules. The Agency seeks information, for We have therefore conducted a the time and location data produced by example, on whether the time savings Regulatory Impact Analysis (RIA) of the § 395.16-compliant EOBRs would need that drivers are likely to achieve from costs and benefits of this NPRM. The

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RIA is summarized below. The full therefore, FMCSA estimates that at any also estimated offsetting cost savings on analysis is available in the docket. given time about 930 carriers would be paper log purchase, use, processing, and The RIA examined three options, using EOBRs the Agency had required storage. which differ based solely on the number them to install. We estimate these In estimating net benefits, we also and type of regulated entities that would carriers to have approximately 16,000 considered the cost to carriers of be subject to mandatory EOBRs. Under power units and 17,500 drivers. achieving compliance with the HOS as the first option, the entire interstate FMCSA gathered cost information a result of EOBR use. In section 6.4 of trucking population would be required from EOBR vendors. Because there was the full RIA, the results of the benefit- to use EOBRs, including those vehicles significant variation in costs among cost analysis are shown with these costs and drivers involved in short-haul (SH) vendors, the analysis included costs for both included and excluded. and long-haul (LH) operations subject to high, median, and low-cost EOBR HOS regulation. The second option was devices. The annualized costs of We assessed safety benefits of EOBR all LH trucks and drivers operating in purchasing, installing, and operating an use by estimating reductions in HOS interstate commerce. The third option EOBR were estimated to range from violations and resulting reductions in was to mandate EOBR use for a $534 to $989 per power unit. We fatigue-related crashes. Other, non- relatively small population of estimated costs on an annualized basis safety health benefits for drivers, as a companies and drivers with a recurrent on a 10-year horizon, with replacement result of decreased driving time, were HOS compliance problem, the ‘‘2 x 10’’ of EOBR units at the end of their useful not quantified in this analysis. Possible entities described under the Remedies life (3 or 5 years, depending on the negative health effects of being section of this proposal. Owner- device). Training time costs for drivers, monitored were also discussed but not operators leased to other motor carriers back-office staff, and State enforcement quantified. The impacts of incentives are covered under the leasing carrier. personnel were estimated across a offered to increase EOBR use were not Based on a review of CR data, FMCSA range—from a half-hour to 3 hours for quantified. estimated that approximately 465 motor drivers and 2 to 12 hours for back-office The estimates of the total net benefits carriers would be affected by the third staff. We estimated State inspectors for each of the three options are option each year. After the first year, would receive 8 hours of training. We presented in Table 3.

TABLE 3.—ANNUALIZED NET BENEFITS [Millions]

Option 3: Option 1: Option 2: recurring non- LH and SH LH only compliant LH

High Cost Estimate ...... ($3,690) ($930) ($7.53) Median Cost Estimate ...... (2,142) (355) (1.66) Low Cost Estimate ...... (1,846) (264) 0.61

In sum, options 1 and 2 show negative provided below. The full IRFA is Unfunded Mandates Reform Act net benefits for all three of the cost provided in the docket. estimates, though the magnitudes of the This rule would not result in the At present, it is unclear whether this expenditure by State, local and tribal negative net benefits vary with the cost proposal would have a significant assumptions. For Option 3, cost governments, in the aggregate, or by the impact on substantial numbers of small private sector, of $128.1 million or more estimates for the EOBR devices entities. The proposed requirements (as adjusted for inflation) in any one determine whether there are net benefits would apply only to the relatively small year, nor would it affect small or net costs: Net benefits are positive number of motor carriers with governments. Therefore, no actions are under the low cost estimate (which significant HOS noncompliance—an deemed necessary under the provisions encompasses compliant, yet not estimated total of between 465 and 930 of the Unfunded Mandates Reform Act integrally synchronized, devices) but carriers per year, a majority of which are of 1995. negative under the high and median considered small. Although the cost Executive Order 13132 (Federalism) cost estimates (which correlate with impacts are generally quite small as a integrally synchronized units). percentage of typical carrier revenues, This rulemaking would not preempt Regulatory Flexibility Act they could vary substantially across or modify any provision of State law, affected carriers, ranging from 0.45 to impose substantial direct unreimbursed This rulemaking has been drafted in 0.07 percent of annual revenues compliance costs on any State, or accordance with the Regulatory depending on the carrier’s revenue per diminish the power of any State to Flexibility Act, as amended by the CMV. Firms with higher revenues-per- enforce its own laws. Accordingly, this Small Business Regulatory Enforcement truck would experience a rulemaking does not have Federalism Fairness Act of 1996 (5 U.S.C. §§ 601– proportionately lower cost impact. implications warranting the application 612). FMCSA conducted an Initial Further, these carriers would experience of Executive Order 13132. Regulatory Flexibility Act (IRFA) compensatory time savings, or Executive Order 12372 analysis of the impacts on small entities administrative efficiencies, as a result of (Intergovernmental Review) to determine whether the proposed rule using EOBR records in place of paper would have a significant economic RODS. The level of increased The regulations implementing E.O. impact on a substantial number of small administrative efficiencies would vary 12372 regarding intergovernmental entities. A brief summary of this Initial with the number of CMVs the carrier consultation on Federal programs and Regulatory Flexibility Analysis is operates. activities do not apply to this rule.

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Paperwork Reduction Act associated with voluntary use of EOBRs drivers for remediated carriers would Under the Paperwork Reduction Act by motor carriers. Drivers employed by, cause a modest overall increase in of 1995 (PRA) (44 U.S.C. 3501, et seq.), and owner-operators leased to, such engine emissions by virtue of coming Federal agencies must obtain approval carriers would have a reduced into compliance with the HOS from the Office of Management and paperwork burden to meet the RODS regulations. Because the number of Budget (OMB) for each collection of requirement at § 395.8, and the motor trucks likely to be required to install information they conduct, sponsor, or carrier’s time-and-cost burden EOBRs is relatively small (7,600 out of require through regulations. FMCSA associated with reviewing and 1.51 million total CMVs), FMCSA determined that this NPRM would affect maintaining the RODS and supporting determined that the increase in air a currently approved information documents would be similarly reduced. toxics would be negligible. Moreover, Under proposed § 395.11, carriers collection for OMB Control Number because drivers for carriers brought into maintaining time and location data 2126–0001, titled ‘‘Hours of Service of HOS compliance would experience less produced by § 395.16-compliant EOBRs Drivers Regulation.’’ OMB approved this fatigue and be less likely to have fatigue- need only maintain such supporting information collection on November 3, related crashes, there would be a documents as are necessary to verify on- 2005, at a revised total of 153,103,292 counterbalancing increase in public duty not-driving and off-duty status to burden hours, with an expiration date of safety. fully meet the supporting documents November 30, 2008. The PRA requires FMCSA concludes that the rule requirements in § 395.8(k). Depending agencies to provide a specific, changes would have a negligible impact on the number of CMVs these carriers objectively supported estimate of on the environment, and therefore operate, their paperwork savings could would not require an environmental burden hours that will be imposed by be substantial. However, because it is the information collection. See 5 CFR impact statement. The provisions under difficult to quantify the number of the proposed action do not, individually 1320.8. The paperwork burden imposed motor carriers that would voluntarily by FMCSA’s records of duty status or collectively, pose any significant use EOBRs, the Agency did not estimate environmental impact. (RODS) requirement is set forth at 49 these potential paperwork savings. CFR 395.8. A supporting statement reflecting this E.O. 13211 (Energy Supply, Distribution FMCSA estimated that the remedial assessment will be submitted to OMB or Use) provisions of this NPRM, requiring the together with this NPRM. FMCSA determined that the proposed installation, use, and maintenance of National Environmental Policy Act rule would not significantly affect EOBRs by motor carriers with a pattern energy supply, distribution, or use. No of severe HOS violations, would affect The National Environmental Policy Statement of Energy Effects is therefore approximately 930 motor carriers with Act of 1969 (NEPA) (42 U.S.C. 4321 et required. about 17,500 drivers annually. These seq., as amended) requires Federal drivers’ total annual burden hours for agencies to consider the consequences E.O. 12898 (Environmental Justice) meeting the RODS requirement at of, and prepare a detailed statement on, FMCSA evaluated the environmental § 395.8 is estimated at 455,000 (17,500 all major Federal actions significantly effects of this proposed action and CMV drivers x 26 hours per year to affecting the quality of the human alternatives in accordance with complete the RODS). The time required environment. In accordance with its Executive Order 12898 and determined by EOBR-using motor carriers to review procedures for implementing NEPA that there are no environmental justice the RODS would likewise be reduced (FMCSA Order 5610.1, Chapter 2.D.4(c) issues associated with the proposal. The compared with that required for review and Appendix 3), FMCSA prepared a proposed rule would have notable of paper RODS. The total burden hours draft Environmental Assessment (EA) to consequences only for trucking firms for carriers to review the RODS for review the potential impacts of this that have repeatedly demonstrated 17,500 EOBR-using drivers was proposed rulemaking. The draft EA noncompliance with the HOS estimated at 210,000 annual burden findings are summarized below. The full regulations. It would not create any hours. The combined reduction in EA is in the docket. adverse health or environmental effects. burden hours for carrier and driver is Implementation of this proposed 665,000 burden hours. action would alter to some extent the E.O. 13045 (Protection of Children) Under the 2005 HOS final rule, the operation of CMVs. However, the Executive Order 13045, Protection of total annual burden hours for carriers proposal, if implemented, would not Children from Environmental Health and drivers using traditional paper require any new construction or change Risks and Safety Risks (62 FR 19885, RODS is 104,754,884 burden hours for significantly the number of CMVs in Apr. 23, 1997), requires agencies issuing drivers’ completion of RODS and operation. FMCSA found, therefore, that ‘‘economically significant’’ rules, if the 48,348,408 burden hours for carriers to noise, hazardous materials, endangered regulation also concerns an review the RODS, for a combined total species, cultural resources protected environmental health or safety risk that of 153,103,292 burden hours. under the National Historic Preservation an Agency has reason to believe may Subtracting from that total the 665,000- Act, wetlands, and resources protected disproportionately affect children, to burden-hour reduction achieved by under Section 4(f) would not be include an evaluation of the regulation’s carriers using EOBRs under this impacted by the rule. environmental health and safety effects proposed rule, we derived an estimated The EA also examined impacts on air on children. As discussed previously, total of 152,438,292 burden hours for quality and public safety. We anticipate this proposed rule is not economically compliance with the RODS requirement that drivers of CMVs operated by significant. Therefore, no analysis of the by all motor carriers—both those carriers that have been issued an EOBR impacts on children is required. operating under the remedial provisions remedial directive would now take the of this NPRM and those using full off-duty periods required by the E.O. 12988 (Civil Justice Reform) traditional paper RODS. HOS rules. During off-duty periods, This action meets applicable Note that the above estimates of drivers frequently leave the CMV parked standards in sections 3(a) and 3(b)(2) of paperwork burden do not take into in ‘‘idle,’’ which increases engine Executive Order 12988, Civil Justice account potential paperwork savings emissions on a per-mile basis. Hence, Reform, to minimize litigation,

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eliminate ambiguity, and reduce integrated license document on the with a history of serious noncompliance burden. driver’s data card) that are not with the HOS rules. appropriate for U.S. operational In summary, the NPRM would neither E.O. 12630 (Taking of Private Property) practices. enlarge the scope of personally This rule would not effect a taking of identifiable information collected nor Privacy Impact Assessment private property or otherwise have change the sharing of that information. taking implications under E.O. 12630, Section 522(a)(5) of the FY 2005 Governmental Actions and Interference Consolidated Appropriations Act, Title List of Subjects with Constitutionally Protected Property V, General Provisions (Pub. L. 108–447, 49 CFR Part 350 Rights. 118 Stat. 2809 at 3268) requires Federal Grant programs—transportation, agencies to conduct a privacy impact National Technology Transfer and Highway safety, Motor carriers, Motor assessment (PIA) of proposed rules that Advancement Act vehicle safety, Reporting and will affect the privacy of individuals. recordkeeping requirements. The National Technology Transfer The Agency conducted a PIA for this and Advancement Act (15 U.S.C. 272 NPRM. We determined that the same 49 CFR Part 385 note) requires Federal agencies personally identifiable information for Administrative practice and proposing to adopt Government CMV drivers currently collected as part procedure, Highway safety, Motor technical standards to consider whether of the RODS and supporting documents voluntary consensus standards are carriers, Motor vehicle safety, Reporting requirements would continue to be and recordkeeping. available. If the Agency chooses to collected under this rulemaking. adopt its own standards in place of Privacy was a significant 49 CFR Part 395 existing voluntary consensus standards, consideration in FMCSA’s development Highway safety, Motor carriers, it must explain its decision in a separate of this proposal. As stated earlier, we Reporting and recordkeeping. statement to OMB. recognize that the need for a verifiable FMCSA determined there are no EOBR audit trail—a detailed set of 49 CFR Part 396 voluntary national consensus standards records to verify time and physical Highways and roads, Motor carriers, for the design of EOBRs as complete location data for a particular CMV— Motor vehicle equipment, Motor vehicle units. However, there are many must be counterbalanced by privacy safety. voluntary consensus standards considerations. The Agency considered, For the reasons set forth above, concerning communications and but rejected, certain alternative FMCSA is proposing to amend 49 CFR information interchange methods that technologies to monitor drivers’ HOS parts 350, 385, 395, and 396 as follows: could be referenced as part of (including in-cab video cameras and comprehensive performance-based biomonitors) as too invasive of personal PART 350—COMMERCIAL MOTOR requirements for EOBRs to ensure their privacy. CARRIER SAFETY ASSISTANCE reliable and consistent utilization by All CMV drivers subject to 49 CFR PROGRAM motor carriers and motor carrier safety Part 395 must have their hours of compliance assurance officials. For service accounted for to ensure that 1. The authority citation for part 350 example, the digital character set would drivers have adequate opportunities for continues to read as follows: reference the ASCII (American Standard rest. This NPRM would not change the Authority: 49 U.S.C. 13902, 31100–31104, Code for Information Interchange) treatment of HOS with respect to 31108, 31136, 31140–31141, 31161, 31310– character set specifications, the most privacy matters, change which drivers 31311, 31502; and 49 CFR 1.73. widely used form of which is ANSI and motor carriers are required to 2. Amend § 350.201 by revising the X3.4–1986. This is described in the comply with the RODS requirement, or introductory text and adding paragraph Document Information Systems—Coded change the sharing of information. The (w) to read as follows: Character Sets—7-Bit American HOS information recorded on EOBRs National Standard Code for Information would be accessible to Federal and State § 350.201 What conditions must a State meet to qualify for Basic Program Funds? Interchange (7-Bit ASCII) (ANSI enforcement personnel only when document # ANSI INCITS 4–1986 compliance assurance activities are Each State must meet the following (R2002)) published by ANSI (American conducted at the facilities of motor conditions: National Standards Institute). In another carriers subject to the RODS * * * * * example, the Agency would reference requirement or when the CMVs of those (w) Enforce requirements relating to the 802.11 family of standards for carriers are stopped for purposes of FMCSA remedial directives issued in wireless communication published by conducting roadside inspections. Motor accordance with 49 CFR Part 385, IEEE (Institute of Electrical and carriers would not be required to upload Subpart F, including providing Electronics Engineers). this information into any Federal or inspection services for verification of We did review and evaluate the State information system accessible electronic on-board recorder installation European Commission Council either to the public or to motor carrier and operation as provided in Regulations 3821/85 (analog safety enforcement agencies. This would § 385.511(b). tachograph) and 2135/98 (digital preserve data security and ensure that tachograph). These are not voluntary EOBR data collection does not result in PART 385—SAFETY FITNESS standards, but rather are design-specific a new or revised Privacy Act System of PROCEDURES type-certification programs. We Records for FMCSA. Data accuracy 3. The authority citation for part 385 concluded these standards lack several concerning drivers’ RODS should is revised to read as follows: features and functions (such as CMV improve as a result of the proposals to Authority: 49 U.S.C. 113, 504, 521(b), location tracking and the ability for the establish new performance standards for 5105(e), 5109, 13901–13905, 31133, 31135, driver to enter remarks) that FMCSA EOBRs; to allow drivers to make EOBR 31136, 31137(a), 31144, 31148, and 31502; desires to include in its proposed entries to identify any errors or Sec. 113(a), Pub. L. 103–311; Sec. 408, Pub. performance-based regulation, and inconsistencies in the data; and to L. 104–88; Sec. 350, Pub. L. 107–87; and 49 require other features (such as an mandate EOBR use by motor carriers CFR 1.73.

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4. Amend § 385.1 by revising § 385.5 Safety fitness standard. § 385.11 Notification of safety rating and paragraph (a) to read as follows: A motor carrier must meet the safety safety fitness determination. * * * * * § 385.1 Purpose and scope. fitness standard set forth in this section. Intrastate motor carriers subject to the (g) If a motor carrier is subject to a (a) This part establishes FMCSA’s hazardous materials safety permit remedial directive and proposed procedures to determine the safety requirements of subpart E of this part determination of unfitness under fitness of motor carriers, to assign safety must meet the equivalent State subpart F of this part, the notice of ratings, to direct motor carriers to take requirements. To meet the safety fitness remedial directive will constitute the remedial action when required, and to standard, the motor carrier must notice of safety fitness determination. If prohibit motor carriers determined to be demonstrate the following: FMCSA has not issued a notice of unfit from operating a CMV. (a) It has adequate safety management remedial directive and proposed * * * * * controls in place, which function determination of unfitness under 5. Amend § 385.3 by adding a effectively to ensure acceptable subpart F of this part, a notice of a definition for safety fitness compliance with applicable safety proposed or final safety rating will determination in alphabetical order, and requirements to reduce the risk constitute the notice of safety fitness by revising the existing definition for associated with: determination. safety rating, to read as follows: (1) Commercial driver’s license 9. Amend § 385.15 by revising paragraph (a) to read as follows: § 385.3 Definitions and acronyms. standard violations (part 383 of this chapter), * * * * * § 385.15 Administrative review. (2) Inadequate levels of financial Safety fitness determination means responsibility (part 387 of this chapter), (a) A motor carrier may request the final determination by FMCSA that FMCSA to conduct an administrative (3) The use of unqualified drivers a motor carrier meets the safety fitness review if it believes FMCSA has (part 391 of this chapter), standard under § 385.5. committed an error in assigning its (4) Improper use and driving of motor Safety rating or rating means a rating proposed safety rating in accordance vehicles (part 392 of this chapter), of ‘‘satisfactory,’’ ‘‘conditional’’ or with § 385.11(c) or its final safety rating ‘‘unsatisfactory,’’ which FMCSA assigns (5) Unsafe vehicles operating on the in accordance with § 385.11(b). highways (part 393 of this chapter), to a motor carrier using the factors * * * * * prescribed in § 385.7, as computed (6) Failure to maintain accident registers and copies of accident reports 10. Amend § 385.17 by adding under the Safety Fitness Rating paragraphs (k) and (l) to read as follows: Methodology (SFRM) set forth in (part 390 of this chapter), Appendix B to this part and based on (7) The use of fatigued drivers (part § 385.17 Change to safety rating based the carrier’s demonstration of adequate 395 of this chapter), upon corrective actions. safety management controls under (8) Inadequate inspection, repair, and * * * * * § 385.5(a). A safety rating of maintenance of vehicles (part 396 of this (k) An upgraded safety rating based ‘‘satisfactory’’ or ‘‘conditional’’ is chapter), upon corrective action under this necessary, but not sufficient, to meet the (9) Transportation of hazardous section will have no effect on an overall safety fitness standard under materials, driving and parking rule otherwise applicable notice of potential § 385.5. violations (part 397 of this chapter), remedial directive applicability, (1) Satisfactory safety rating means (10) Violation of hazardous materials remedial directive, or proposed that a motor carrier has in place and regulations (parts 170 through 177 of determination of unfitness issued in functioning safety management controls this title), and accordance with subpart F of this part. adequate to meet that portion of the (11) Motor vehicle accidents, as (l) A motor carrier may not request a safety fitness standard prescribed in defined in § 390.5 of this chapter, and rescission of a determination of § 385.5(a). Safety management controls hazardous materials incidents; and unfitness issued under subpart F of this are adequate for this purpose if they are (b) The motor carrier has complied part based on corrective action. appropriate for the size and type of with all requirements contained in any 11. Amend § 385.19 by revising operation of the particular motor carrier. remedial directive issued under subpart paragraphs (a) and (b) to read as follows: (2) Conditional safety rating means a F of this part. motor carrier does not have adequate 7. Amend § 385.9 by revising § 385.19 Safety fitness information. safety management controls in place to paragraph (a) to read as follows: (a) Final safety ratings, remedial ensure compliance with that portion of directives, and safety fitness the safety fitness standard prescribed in § 385.9 Determination of a safety rating. determinations will be made available § 385.5(a), which could result in (a) Following a compliance review of to other Federal and State agencies in occurrences listed in § 385.5(a)(1) a motor carrier operation, FMCSA, using writing, telephonically, or by remote through (a)(11). the factors prescribed in § 385.7 as computer access. (3) Unsatisfactory safety rating means computed under the Safety Fitness (b) The final safety rating, any a motor carrier does not have adequate Rating Methodology set forth in applicable remedial directive(s), and the safety management controls in place to Appendix B of this part, shall determine safety fitness determination pertaining ensure compliance with that portion of whether the present operations of the to a motor carrier will be made available the safety fitness standard prescribed in motor carrier are consistent with that to the public upon request. Any person § 385.5(a), and this has resulted in portion of the safety fitness standard set requesting information under this occurrences listed in § 385.5 (a)(1) forth in § 385.5(a), and assign a safety paragraph must provide FMCSA with through (a)(11). rating accordingly. the motor carrier’s name, principal (4) Unrated carrier means that * * * * * office address, and, if known, the FMCSA has not assigned a safety rating 8. Amend § 385.11 by revising the USDOT number or the ICCMC docket to the motor carrier. section heading and adding paragraph number if applicable. 6. Revise § 385.5 to read as follows: (g) to read as follows: * * * * *

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12. Amend § 385.407 by revising authority under part 365), in accordance this subpart. The NPRDA will explain paragraph (a) to read as follows: with § 385.1(a), to install electronic on- the future circumstances that would board recorders (EOBRs) in their trigger issuance of a remedial directive § 385.407 What conditions must a motor commercial motor vehicles as a remedy and will describe generally the carrier satisfy for FMCSA to issue a safety permit? for recurring violations of the part 395 compliance review findings that hours-of-service regulations listed in prompted issuance of the NPRDA. (a) Motor carrier safety performance. Appendix C to this part. Pattern violation for the purposes of (1) The motor carrier: (c) This subpart establishes the this subpart means a violation rate for (i) Must be in compliance with any procedures by which motor carriers may any Appendix C regulation equal to or remedial directive issued under subpart challenge FMCSA’s issuance of notices greater than 10 percent of the number of F of this part, and of proposed remedial directive records reviewed. (ii) Must have a ‘‘Satisfactory’’ safety applicability, proposed determinations Proposed determination of unfitness rating assigned by either FMCSA, under of unfitness, and remedial directives. or proposed unfitness determination the Safety Fitness Procedures of this (d) The provisions of this subpart means a determination by FMCSA that part, or the State in which the motor apply to all motor carriers subject to the a motor carrier will not meet the safety carrier has its principal place of requirements of part 395 of this chapter. fitness standard under § 385.5 on a business, if the State has adopted and specified future date unless the carrier implemented safety fitness procedures § 385.503 Definitions and acronyms. takes the actions necessary to comply that are equivalent to the procedures in (a) The definitions in subpart A of this with the terms of a remedial directive subpart A of this part. part and part 390 of this chapter apply issued under this subpart. (2) FMCSA will not issue a safety to this subpart, except where otherwise Remedial directive means a permit to a motor carrier that: specifically noted. mandatory instruction from FMCSA to (i) Does not certify that it has a (b) As used in this subpart, the take one or more specified action(s) as satisfactory security program as required following terms have the meaning a condition of demonstrating safety in § 385.407(b); specified: fitness under 49 U.S.C. 31144(b). (ii) Has a crash rate in the top 30 Appendix C regulation means any of percent of the national average as the regulations listed in Appendix C to § 385.505 Events triggering issuance of remedial directive and proposed indicated in the FMCSA Motor Carrier Part 385 of this chapter. determination of unfitness. Management Information System Appendix C violation means a (a) A motor carrier subject to 49 CFR (MCMIS); or violation of any of the regulations listed Part 395 will be subject to a remedial (iii) Has a driver, vehicle, hazardous in Appendix C to Part 385 of this directive and proposed unfitness materials, or total out-of-service rate in chapter. determination in accordance with this the top 30 percent of the national Electronic on-board recording device subpart for pattern violations of any average as indicated in the MCMIS. (EOBR) means an electronic device that Appendix C regulation or regulations is capable of recording a driver’s duty * * * * * that occur within a 2-year period. A hours of service and duty status 13. Add subpart F to part 385 to read remedial directive and proposed accurately and automatically and that as follows: unfitness determination will be issued if meets the requirements of § 395.16 of a compliance review conducted on the Subpart F—Remedial Directives this chapter. motor carrier resulted in a final Sec. Final determination for purposes of determination of one or more pattern 385.501 Purpose and scope. part 385, subpart F means: 385.503 Definitions and acronyms. (1) An adjudication under this subpart violations of any Appendix C regulation 385.505 Events triggering issuance of upholding a notice of potential remedial and, in a subsequent compliance review remedial directive and proposed directive applicability (NPRDA) or completed within the 2-year period determination of unfitness. following the closing date of the first 385.507 Notice of potential remedial remedial directive and proposed unfitness determination; review, one or more pattern violations directive applicability. of any Appendix C regulation(s) are 385.509 Issuance of remedial directive. (2) The expiration of the period for 385.511 Proof of compliance with remedial filing a request for administrative discovered. (b) The two compliance reviews directive. review of an NPRDA or remedial under paragraph (a) of this section need 385.513 Issuance and conditional rescission directive and proposed unfitness not be conducted consecutively for a of proposed unfitness determination. determination under this subpart; or 385.515 Exemption for AOBRD users. (3) The entry of a settlement remedial directive and proposed 385.517 Administrative review. agreement stipulating that the carrier is unfitness determination to be issued. 385.519 Effect of failure to comply with remedial directive. subject to mandatory EOBR installation, § 385.507 Notice of potential remedial use, and maintenance requirements. directive applicability. Subpart F—Remedial Directives Motor carrier includes owner- (a) Following the first of the two operators leased to carriers subject to a compliance reviews described in § 385.501 Purpose and scope. remedial directive, regardless of § 385.505(a), FMCSA will provide the (a) This subpart establishes whether the owner-operator has motor carrier a written notice of procedures for FMCSA’s issuance of separate operating authority under part potential remedial directive notices of potential remedial directive 365 of this chapter. applicability (NPRDA). applicability, remedial directives, and Notice of potential remedial directive (b) The NPRDA will contain the proposed determinations of unfitness. applicability (NPRDA) means a notice, following information: (b) This subpart establishes the following a compliance review of a (1) Notification of the applicability of circumstances under which FMCSA motor carrier, that this subpart applies this subpart. will direct motor carriers (including to the motor carrier and that violations (2) Notification that violations owner-operators leased to motor or other findings during the compliance discovered during the compliance carriers, regardless of whether the review may contribute to the future review may cause the future issuance of owner-operator has separate operating issuance of a remedial directive under a remedial directive under this subpart.

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(3) The circumstances under which (ii) Receipts for the installation work. may subject the motor carrier to the future violations would trigger issuance (iii) Digital or other photographic provisions of § 385.519. of a remedial directive. evidence depicting the installed devices (4) A brief statement of the in the carrier’s CMVs. § 385.513 Issuance and conditional (iv) Documentation of the EOBR serial rescission of proposed unfitness compliance review findings that determination. prompted issuance of the NPRDA. number for the specific device (5) The manner in which a motor corresponding to each CMV in which (a) Simultaneously with the notice of carrier may challenge the issuance of an the device has been installed. remedial directive, FMCSA will issue a NPRDA in accordance with § 385.517. (3) If no receipt is submitted for an proposed unfitness determination. The (6) Any other matters as FMCSA may installed device or the installation work proposed unfitness determination will deem appropriate. in accordance with paragraph (a)(2) of explain that, if the motor carrier fails to (c) FMCSA will notify the carrier in this section, the carrier must submit a comply with the terms of the remedial writing of the rescission of an NPRDA. written statement explaining who directive, the carrier will be unfit under installed the devices, how many devices the fitness standard in § 385.5, § 385.509 Issuance of remedial directive. were installed, the manufacturer and prohibited from engaging in interstate (a) Following the close of the second model numbers of the devices installed, operations and intrastate operations of the two compliance reviews and the vehicle identification numbers affecting interstate commerce, and, in described in § 385.505(a), FMCSA will of the CMVs in which the devices were the case of a carrier registered under 49 issue the motor carrier a written notice installed. U.S.C. 13901, have its registration of remedial directive and proposed (b) Visual and functional EOBR revoked. determination of unfitness. FMCSA will inspections may be performed at any (b) FMCSA will conditionally rescind issue the notice and proposed FMCSA roadside inspection station or at the proposed determination of unfitness determination as soon as practicable, the roadside inspection or weigh station upon the motor carrier’s submission of but not later than 30 days after the close facility of any State that receives Motor sufficient proof of EOBR installation in of the review. Carrier Safety Assistance Program funds accordance with § 385.511. (b) The remedial directive will state under 49 U.S.C. 31102 and that provides (c) During the period the remedial that the motor carrier is required to such inspection services. The carrier directive is in effect, FMCSA may install EOBRs compliant with § 395.16 may also request such inspections be reinstate the proposed unfitness of this chapter in all of the motor performed at its principal place of determination and immediately prohibit carrier’s CMVs and to provide proof of business. the motor carrier from operating in the installation to FMCSA in accordance (c) Motor carriers issued remedial interstate commerce and intrastate with § 385.511 within the following directives pursuant to this section must operations affecting interstate commerce time periods: install in all of their CMVs EOBRs if the motor carrier violates the (1) Motor carriers transporting meeting the standards set forth in 49 provisions of the remedial directive. hazardous materials in quantities CFR 395.16. Such motor carriers must § 385.515 Exemption for AOBRD users. requiring placarding, and motor carriers maintain and use the EOBRs to verify transporting passengers in a CMV, must compliance with part 395 for a period (a) Upon written request by the motor install EOBRs and provide proof of the of 2 years following the issuance of the carrier, FMCSA will grant an exception installation by the 45th day after the remedial directive. In addition to any from the requirements of remedial date of the notice of remedial directive. other requirements imposed by the directives under this section to motor (2) All other motor carriers must FMCSRs, during the period of time the carriers that already had installed in all install EOBRs and provide proof of carrier is subject to a remedial directive commercial motor vehicles, at the time installation by the 60th day following the carrier must maintain all records of the compliance review immediately the date of FMCSA’s notice of remedial and reports generated by the EOBRs preceding the issuance of the notice of directive. If FMCSA determines the and, upon demand, produce those remedial directive, AOBRDs compliant motor carrier is making a good-faith records to FMCSA personnel. with 49 CFR 395.15, or to motor carriers effort to comply with the terms of the (d) Malfunctioning devices. Motor that had been issued a waiver allowing remedial directive, FMCSA may allow carriers subject to remedial directives the carrier to use devices not fully the motor carrier to operate for up to 60 shall maintain EOBRs installed in their compliant with § 395.15. additional days. CMVs in good working order. Such (b) The carrier will be permitted to carriers must cause any malfunctioning continue using the previously installed § 385.511 Proof of compliance with EOBR to be repaired or replaced within devices if the carrier can satisfactorily remedial directive. 14 days from the date the carrier demonstrate to FMCSA that the carrier (a) Motor carriers subject to a becomes aware of the malfunction. and its employees understand how to remedial directive to install EOBRs During this repair or replacement use the AOBRDs and the information under this section must provide proof of period, carriers subject to a remedial derived from them. EOBR installation by one of the directive under this part must prepare a (c) The carrier must either use and following: paper record of duty status pursuant to maintain the AOBRDs currently in its (1) Submitting all of the carrier’s § 395.8 of this chapter as a temporary CMVs or install new § 395.16-compliant CMVs for visual and functional replacement for the non-functioning devices. inspection by FMCSA or qualified State EOBR unit. All other provisions of the (d) Although FMCSA may suspend enforcement personnel. remedial directive will continue to enforcement for noncompliance with (2) Transmitting to the FMCSA apply during the repair and replacement the remedial directive, the directive will service center for the geographic area period. Failure to comply with the terms remain in effect, and the hours-of- where the carrier maintains its principal of this paragraph may subject the service compliance of any motor carrier place of business all of the following affected CMV and/or driver to an out-of- so exempted will be subject to ongoing documentation: service order pursuant to § 396.9(c) and FMCSA oversight. (i) Receipts for all necessary EOBR § 395.13 of this chapter, respectively. (e) The exemption granted under this purchases. Repeated violations of this paragraph section shall not apply to CMVs

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manufactured on or after the date 2 requested, or does not attend the of FMCSA’s notice of remedial directive years from the effective date of this rule. conference, FMCSA may dismiss its and proposed unfitness determination. request for review. A motor carrier subject to the § 385.517 Administrative review. (e) FMCSA will notify the motor registration requirements of 49 U.S.C. (a) A motor carrier may request carrier in writing of its decision 13901 will have its registration revoked FMCSA to conduct an administrative following the administrative review. on the 61st day after the date of review if the carrier believes FMCSA FMCSA will complete its review: FMCSA’s notice of remedial directive has committed an error in issuing an (1) Within 30 days after receiving a and proposed unfitness determination. NPRDA under § 385.507 or a notice of request from a hazardous materials or If FMCSA determines the motor carrier remedial directive and proposed passenger motor carrier that has is making a good-faith effort to satisfy unfitness determination under received a proposed unfitness the terms of the remedial directive, § 385.509. Administrative reviews of determination; FMCSA may allow the motor carrier to notices of remedial directive and (2) Within 45 days after receiving a operate for up to 60 additional days. proposed unfitness determinations are request from any other motor carrier (b) If a proposed unfitness limited to findings in the compliance that has received a proposed unfitness determination becomes a final review immediately preceding the determination; determination, FMCSA will issue an notice. (3) With respect to requests for order prohibiting the motor carrier from (b) The motor carrier’s request must administrative review of notices of operating in interstate commerce. If the explain the error it believes FMCSA potential remedial directive motor carrier is required to register committed in issuing the NPRDA or the applicability, as soon as practicable but under 49 U.S.C. 13901, FMCSA will notice of remedial directive and not later than 60 days after receiving the revoke the motor carrier’s registration proposed unfitness determination. The request. on the dates specified in § 385.519(a)(1) motor carrier must include a list of all (f) The decision regarding a proposed and (a)(2). factual and procedural issues in dispute unfitness determination constitutes final (c) If FMCSA has prohibited a motor and any information or documents that Agency action. carrier from operating in interstate support its argument. (g) The provisions of this section will commerce under paragraph (a) of this (c) The motor carrier must submit its not affect procedures for administrative section and, if applicable, revoked the request in writing to the Assistant review of proposed or final safety carrier’s registration, and the motor Administrator, Federal Motor Carrier ratings in accordance with § 385.15 or carrier subsequently complies with the Safety Administration, 400 Seventh for requests for changes to safety ratings terms and conditions of the remedial Street, SW., Washington, DC 20590. The based upon corrective action in directive and provides proof of EOBR carrier must submit on the same day a accordance with § 385.17. installation under § 385.511, the carrier copy of the request to FMCSA counsel may request FMCSA to lift the in the FMCSA service center for the § 385.519 Effect of failure to comply with remedial directive. prohibition on operations at any time geographic area where the carrier after the prohibition becomes effective. (a) A motor carrier that fails or refuses maintains its principal place of The request should be submitted in to comply with the terms of a remedial business. writing in accordance with § 385.517(c). (1) If a motor carrier has received a directive issued under this subpart, (d) A Federal Agency must not use for notice of remedial directive and including a failure or refusal to provide CMV transportation a motor carrier that proposed unfitness determination, the proof of EOBR installation in FMCSA has determined is unfit. carrier should submit its request in accordance with § 385.511, does not (e) Penalties. If a proposed unfitness writing within 15 days from the date of meet the safety fitness standard set forth determination becomes a final the notice. This timeframe will allow in § 385.5(b). With respect to such determination, FMCSA will issue an FMCSA to issue a written decision carriers, the proposed determination of order prohibiting the motor carrier from before the prohibitions outlined in unfitness issued in accordance with operating in interstate commerce and § 385.519(a) take effect. If the carrier § 385.513 becomes final, and the motor any intrastate operations that affect submits its request for administrative carrier is prohibited from operating, as interstate commerce and, if applicable, review within 15 days of the issuance of follows: revoking its registration. Any motor the notice of remedial directive and (1) Motor carriers transporting carrier that operates CMVs in violation proposed unfitness determination, hazardous materials in quantities of this section will be subject to the FMCSA will stay the finality of the requiring placarding and motor carriers penalty provisions listed in 49 U.S.C. proposed unfitness determination until transporting passengers in a CMV are 521(b). the Agency has ruled on the carrier’s prohibited from operating CMVs in 14. Amend Appendix B by revising request. Failure to submit the request interstate commerce and in operations introductory paragraphs (b), (c), and (d) within this 15-day period may prevent that affect interstate commerce and section VI Conclusion, paragraph FMCSA from ruling on the request beginning on the 46th day after the date (a), to read as follows: before the prohibitions take effect. of FMCSA’s notice of remedial directive (2) A motor carrier must make a and proposed unfitness determination. Appendix B to Part 385—Explanation request for an administrative review A motor carrier subject to the of Safety Rating Process within 90 days following the date of the registration requirements of 49 U.S.C. * * * * * NPRDA under § 385.507 or the notice of 13901 will have its registration revoked (b) As directed, FMCSA promulgated a remedial directive and proposed on the 46th day after the date of safety fitness regulation, entitled ‘‘Safety determination of unfitness under FMCSA’s notice of remedial directive Fitness Procedures,’’ which established a § 385.509. and proposed unfitness determination. procedure to determine the safety fitness of (d) FMCSA may request the motor (2) All other motor carriers are motor carriers through the assignment of safety ratings and established a ‘‘safety carrier to submit additional data or prohibited from operating a CMV in fitness standard’’ that a motor carrier must attend a conference to discuss the interstate commerce and in operations meet to obtain a ‘‘satisfactory’’ safety rating. request for review. If the motor carrier that affect interstate commerce FMCSA later amended the safety fitness does not provide the information beginning on the 61st day after the date standard to add a distinct requirement that

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motor carriers also be in compliance with after having been on duty more than 80 hours § 395.5(b)(1) applicable remedial directives. in 8 consecutive days (Driving in ). Requiring or permitting a passenger- (c) To meet the safety fitness standard, a § 395.1(h)(2)(i) carrying commercial motor vehicle driver to motor carrier must meet two requirements. Requiring or permitting a passenger- drive after having been on duty more than 60 First, the carrier must demonstrate to FMCSA hours in 7 consecutive days. it has adequate safety management controls carrying commercial motor vehicle driver to in place that function effectively to ensure drive more than 15 hours (Driving in Alaska). § 395.5(b)(2) acceptable compliance with the applicable § 395.1(h)(2)(ii) Requiring or permitting a passenger- safety requirements. (See § 385.5(a)). A carrying commercial motor vehicle driver to Requiring or permitting a passenger- ‘‘safety fitness rating methodology’’ (SFRM) drive after having been on duty more than 70 carrying commercial motor vehicle driver to developed by FMCSA uses data from hours in 8 consecutive days. drive after having been on duty 20 hours compliance reviews (CRs) and roadside (Driving in Alaska). § 395.8(a) inspections to rate motor carriers. Second, a Failing to require driver to make a record motor carrier must also be in compliance § 395.1(h)(2)(iii) of duty status. with any applicable remedial directives Requiring or permitting a passenger- issued in accordance with subpart F. This carrying commercial motor vehicle driver to § 395.8(e) second requirement is set forth in § 385.5(b). drive after having been on duty more than 70 False reports of records of duty status. (d) The safety rating process developed by hours in 7 consecutive days (Driving in § 395.8(i) FMCSA is used to: Alaska). 1. Evaluate the first component of the Failing to require driver to forward within § 395.1(h)(2)(iv) safety fitness standard, under § 385.5(a), and 13 days of completion, the original of the assign one of three safety ratings (satisfactory, Requiring or permitting a passenger- record of duty status. conditional, or unsatisfactory) to motor carrying commercial motor vehicle driver to § 395.8(k)(1) drive after having been on duty more than 80 carriers operating in interstate commerce. Failing to preserve driver’s record of duty hours in 8 consecutive days (Driving in This process conforms to § 385.5(a), Safety status for 6 months. fitness standard, and § 385.7, Factors to be Alaska). § 395.8(k)(1) considered in determining a safety rating. § 395.1(o) 2. Identify motor carriers needing Failing to preserve driver’s records of duty Requiring or permitting a property-carrying improvement in their compliance with the status supporting documents for 6 months. commercial motor vehicle driver to drive Federal Motor Carrier Safety Regulations after having been on duty 16 consecutive (FMCSRs) and applicable Hazardous PART 395—HOURS OF SERVICE OF hours. Materials Regulations (HMRs). These are DRIVERS carriers rated unsatisfactory or conditional. § 395.3(a)(1) 16. The authority citation for part 395 * * * * * Requiring or permitting a property-carrying commercial motor vehicle driver to drive continues to read as follows: VI. Conclusion more than 11 hours. Authority: 49 U.S.C. 508, 13301, 13902, (a) FMCSA believes this ‘‘safety § 395.3(a)(2) 31133, 31136, 31502, 31504, and sec. 204, Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C. fitness rating methodology’’ is a Requiring or permitting a property-carrying reasonable approach to assignment of a 701 note); sec. 114, Pub. L. 103–311, 108 Stat. commercial motor vehicle driver to drive 1673, 1677; sec. 217, Pub. L. 106–159, 113 safety rating, as required by the safety after the end of the 14th hour after coming Stat. 1748, 1767; and 49 CFR 1.73. fitness regulations (§ 385.9), that most on duty. closely reflects the motor carrier’s § 395.3(b)(1) 17. Section 395.2 is amended to add current level of compliance with the the following definitions in alphabetical Requiring or permitting a property-carrying order: safety fitness standard in § 385.5(a). commercial motor vehicle driver to drive This methodology has the capability to after having been on duty more than 60 hours § 395.2 Definitions. incorporate regulatory changes as they in 7 consecutive days. * * * * * occur. § 395.3(b)(2) ASCII (American Standard Code for * * * * * Requiring or permitting a property-carrying Information Interchange) is a character 15. Add Appendix C to read as commercial motor vehicle driver to drive set and a character encoding system follows: after having been on duty more than 70 hours based on the Roman alphabet as used in in 8 consecutive days. Appendix C to Part 385—Regulations modern English and other Western Pertaining To Remedial Directives in § 395.3(c)(1) European languages. ASCII is commonly Part 385 Subpart F Requiring or permitting a property-carrying used by computers and other commercial motor vehicle driver to restart a communication equipment. The § 395.1(h)(1)(i) period of 7 consecutive days without taking specifications for the ASCII standard Requiring or permitting a property-carrying an off-duty period of 34 or more consecutive (the most widely used form of which is commercial motor vehicle driver to drive hours. ANSI X3.4–1986) are described in the more than 15 hours (Driving in Alaska). § 395.3(c)(2) document Information Systems—Coded § 395.1(h)(1)(ii) Requiring or permitting a property-carrying Character Sets—7-Bit American Requiring or permitting a property-carrying commercial motor vehicle driver to restart a National Standard Code for Information commercial motor vehicle driver to drive period of 8 consecutive days without taking Interchange (7-Bit ASCII) (ANSI after having been on duty 20 hours (Driving an off-duty period of 34 or more consecutive document # ANSI INCITS 4–1986 in Alaska). hours. (R2002)), published by the American § 395.1(h)(1)(iii) § 395.5(a)(1) National Standards Institute (ANSI). Requiring or permitting a property-carrying Requiring or permitting a passenger- * * * * * commercial motor vehicle driver to drive carrying commercial motor vehicle driver to Bluetooth is a short-range wireless after having been on duty more than 70 hours drive more than 10 hours. data communications standard typically in 7 consecutive days (Driving in Alaska). § 395.5(a)(2) used to exchange information between § 395.1(h)(1)(iv) Requiring or permitting a passenger- electronic devices such as personal Requiring or permitting a property-carrying carrying commercial motor vehicle driver to digital assistants (PDAs), mobile commercial motor vehicle driver to drive drive after having been on duty 15 hours. phones, and portable laptop computers.

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The technical specifications for the its territories. UTC time refers to time remedial directive to install, use, and Bluetooth standard are described in the kept on the Greenwich meridian maintain EOBRs. document Bluetooth Specification (longitude zero), which is 5 hours ahead 20. Amend § 395.13 to revise Version 2.0 + EDR [vol. 0], available of Eastern Standard Time. UTC times paragraph (b)(2) and to add paragraph from the Bluetooth Special Interest are expressed in terms of a 24-hour (b)(4) to read as follows: Group (SIG). clock. Standard time within any U.S. CD–RW (Compact Disc—ReWriteable) time zone is offset from UTC by a given § 395.13 Drivers declared out of service. means an optical disc digital storage number of hours determined by the time * * * * * format that allows digital data to be zone’s distance from the Greenwich (b) * * * erased and rewritten many times. The meridian. (2) Every driver required to maintain technical and physical specifications for * * * * * a record of duty status under § 395.8 CD–RW are described in the document XML (Extensible Markup Language) is must have a record of duty status Orange Book Part III: CD–RW, published text format used for including current on the day of examination and by Royal Philips Electronics. information about the conceptual for the prior 7 consecutive days. * * * * * structure of a piece of text. The primary * * * * * 802.11 is a set of communications and purpose of XML is to facilitate the (4) No driver shall drive a CMV in product compatibility standards for sharing of data across different violation of § 385.511(d) of this chapter. wireless local area networks (WLAN). computer systems. The technical * * * * * The 802.11 standards are also known as specifications for XML are described in 21. Amend § 395.15 to revise WiFi by marketing convention. The the document Extensible Markup paragraph (a) to read as follows: 802.11 standard includes three Language (XML) 1.0 (Third Edition), amendments to the original standard, published by the World Wide Web § 395.15 Automatic on-board recording 802.11a, 802.11b, and 802.11g. The Consortium (W3C). devices. technical specifications for 802.11a, 18. Amend § 395.8 to revise (a) Applicability. This section applies 802.11b, and 802.11g are published by paragraphs (a)(2) and (e) to read as to automatic on-board recording devices the Institute of Electrical and follows: (AOBRDs) used to record the driver’s Electronics Engineers (IEEE). hours of service as specified by part 395. Electronic on-board recording device § 395.8 Driver’s record of duty status. For commercial motor vehicles (EOBR) means an electronic device that (a) * * * manufactured prior to [INSERT DATE 2 is capable of recording a driver’s hours (2) Every driver operating a YEARS AFTER PUBLICATION OF of service and duty status accurately commercial motor vehicle equipped FINAL RULE], manufacturers or motor and automatically and that meets the with either an automatic on-board carriers may install an electronic device requirements of § 395.16. recording device meeting the to record hours of service if the device * * * * * requirements of § 395.15 or an meets the requirements of either this Integrally synchronized refers to an electronic on-board recorder meeting section or § 395.16. AOBRD or EOBR that receives and the requirements of § 395.16 must * * * * * records the engine use status for the record his or her duty status using the 22. Add § 395.16 to read as follows: purpose of deriving on-duty-driving device installed in the vehicle. The status from a source or sources internal requirements of this section shall not § 395.16 Electronic on-board recording to the CMV. apply, except for paragraphs (e) and devices. * * * * * (k)(1) and (2). (a) Applicability. This section applies RS–232 is a standard for serial binary * * * * * to electronic on-board recording devices data interconnection. The technical (e) Failure to complete the record of (EOBRs) used to record the driver’s specifications for the RS–232 standard duty activities of this section, failure to hours of service as specified by part 395. are described in the document Interface preserve a record of such duty activities, For commercial motor vehicles Between Data Terminal Equipment and or making false reports in connection manufactured after [INSERT DATE 2 Data Circuit-Terminating Equipment with such duty activities shall make the YEARS AFTER PUBLICATION OF Employing Serial Binary Data driver and/or the carrier liable to FINAL RULE], any electronic device Interchange (ANSI/TIA–232–F–1997 prosecution. installed in a CMV by a manufacturer or (R2002)), September 1, 1997, published * * * * * motor carrier to record hours of service by the Telecommunications Industry 19. Add § 395.11 to read as follows: must meet the requirements of this Association (TIA). section. * * * * * § 395.11 Supporting documents for EOBR- (b) Information to be recorded. An USB (Universal Serial Bus) is a serial created RODS. EOBR must record the following bus interface standard for connecting Time and location data produced by information: electronic devices. The technical and an EOBR meeting the requirements of (1) Name of driver and any co- physical specifications for USB are § 395.16 are sufficient to verify on-duty driver(s), and corresponding driver described in the document Universal driving time. Motor carriers maintaining identification information (such as user Serial Bus Revision 2.0 specification, time and location data produced by a IDs and passwords, PIN numbers, smart published by the USB Implementers § 395.16-compliant EOBR need only cards, or biometrics). Forum (USBIF), an industry standards maintain additional supporting (2) Duty status. group of leading companies from the documents (e.g., driver payroll records, (3) Date and time. computer and electronics industries. fuel receipts) that provide the ability to (4) Location of CMV. UTC (Coordinated Universal Time) is verify on-duty not-driving activities and (5) Distance traveled. the international civil time standard, off-duty status to fully meet the (6) Name and USDOT number of determined by using highly precise requirements of § 395.8(k). This section motor carrier. atomic clocks. It is the basis for civil does not apply to motor carriers and (7) 24-hour period starting time (e.g., standard time in the United States and owner-operators that have been issued a midnight, 9 a.m., noon, 3 p.m.).

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(8) The multiday basis (7 or 8 days) format as specified in Appendix A of (2) An EOBR must produce, upon used by the motor carrier to compute this part, but does not need to be demand, a driver’s hours-of-service cumulative duty hours and driving time. displayed on the EOBR’s visual output chart using a graph-grid format in either (9) Hours in each duty status for the device. electronic or printed form in the manner 24-hour period, and total hours. (4) For each change of duty status described in § 395.8 and a digital file in (10) Truck or tractor and trailer (e.g., the place and time of reporting for the format described in Appendix A of number. work, starting to drive, on-duty not- this part. The chart must show the time (11) Shipping document number(s), or driving, and where released from work), and sequence of duty status changes name of shipper and commodity. the name of the nearest city, town, or including the driver’s starting time at (c) Duty status categories. An EOBR village, with State abbreviation, must be the beginning of each day. must use the following duty statuses: recorded. (3) This information may be used in (1) ‘‘Off duty’’ or ‘‘OFF’’, or other (5) The EOBR must use location codes conjunction with handwritten or identifiable code or character. derived from satellite or terrestrial printed records of duty status for the (2) ‘‘Sleeper berth,’’ or ‘‘SB’’ or other sources, or a combination of these. The previous 7 days. identifiable code or character, to be used location codes must correspond, at a (4) The information displayed on the only if sleeper berth is used. minimum, to the Census Bureau 2000 device must be made accessible to (3) ‘‘Driving,’’ or ‘‘D’’ or other Gazetteer ‘‘County Subdivision’’ data. authorized Federal, State, or local safety identifiable code or character. (g) Distance traveled. assurance officials for their review (4) ‘‘On-duty not-driving’’ or ‘‘ON’’ or (1) Distance traveled must use units of without requiring the official to enter in other identifiable code or character. miles or kilometers driving during each or upon the CMV. The output record (d) Duty status defaults. on-duty driving period and total for must conform to the file format (1) An EOBR must automatically each 24-hour period for each driver specified in Appendix A of this part. record driving time. operating the CMV. (5) The driver must have in his or her (2) When the CMV is stationary for 15 (2) If the EOBR records units of possession records of duty status for the minutes or more, the EOBR must default distance in kilometers, it must provide previous 7 consecutive days available to on-duty not-driving, and the driver a means to display the equivalent for inspection while on duty. These must enter the proper duty status. distance in miles. records must consist of information (3) An EOBR must record the results (3) If the EOBR obtains distance- stored in and retrievable from the EOBR, of power-on self-tests and diagnostic traveled information from a source handwritten records, other computer- error codes. internal to the CMV, the information generated records, or any combination (e) Date and time. must be accurate to the distance of these. Electronic records must be (1) The date and time must be traveled as measured by the CMV’s transferable to portable computers used reported on the EOBR output record as odometer. by roadside safety assurance officials specified under paragraph (f) of this (4) If the EOBR obtains distance- and must provide files in the format section and displayed at each change of traveled information from a source specified in Appendix A of this part. duty status. external to the CMV, the information The communication information (2) The date and time must be recorded must be accurate to within ±1 interchange methods must comply with obtained, transmitted, and recorded in percent of actual distance traveled over the requirements of RS 232, USB 2.0, such a way that it cannot be altered by a 24-hour period as measured by the IEEE 802.11(g), and Bluetooth. a motor carrier, driver, or third party. CMV’s odometer. (6) Support systems used in (3) The driver’s duty status record (h) Review of information by driver. conjunction with EOBRs at a driver’s must be prepared, maintained, and (1) The EOBR must allow for the home terminal or the motor carrier’s submitted using the time standard in driver’s review of each day’s record principal place of business must be effect at the driver’s home terminal, for before the driver submits the record to capable of providing authorized Federal, a 24-hour period beginning with the the motor carrier. State, or local officials with summaries time specified by the motor carrier for (2) The driver must review the of an individual driver’s hours of that driver’s home terminal. information contained in the EOBR service records, including the (4) The time must be coordinated to record and affirmatively note the review information specified in § 395.8(d). The UTC and must not drift more than 2 before submitting the record to the support systems must also provide seconds per day. The absolute deviation motor carrier. information concerning on-board system from the time base coordinated to UTC (3) The driver may annotate only non- sensor failures and identification of shall not exceed 10 minutes at any time. driving-status periods, and may do so amended and edited data. Support (f) Location. only immediately prior to the first systems must provide a file in the (1) Information used to determine the driving period of the day and format specified in Appendix A of this location of the CMV must be derived immediately following the last driving part. The system must also be able to from a source not subject to alteration period of the day. The driver must produce a copy of files on portable by the motor carrier or driver. electronically confirm his or her storage media (CD–RW, USB 2.0 drive) (2) The location description for the intention to make any annotations. upon request of authorized safety duty status change must be sufficiently (4) If the driver makes a written entry assurance officials. precise to enable enforcement personnel on a hardcopy output of an EOBR (j) Driver identification. For the driver to quickly determine the vehicle’s relating to his or her duty status, the to log into the EOBR, the EOBR must geographic location at each change of entries must be legible and in the require the driver to enter information duty status on a standard map or road driver’s own handwriting. (such as user IDs and passwords, PIN atlas. (i) Information reporting numbers) that identifies the driver or to (3) When the CMV is in motion, requirements. provide other information (such as location and time must be recorded at (1) An EOBR must make it possible smart cards, biometrics) that identifies intervals no greater than 1 minute. This for authorized Federal, State, or local the driver. recorded information must be capable of officials to immediately check the status (k) Availability of records of duty being made available in an output file of a driver’s hours of service. status.

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(1) An EOBR must be capable of (4) Total miles or kilometers of at least 30 minutes in advance of producing duty status records for the driving during each driving period and reaching the weekly duty/driving-hour current day and the previous 7 days the current duty day. limitation. from either the information stored in (5) Total hours on duty and driving (6) The EOBR must warn the driver and retrievable from the EOBR or time for the 7-consecutive-day period, via an audible and visible signal that the computer-generated records, or any including the current duty day. device has ceased to function. combination of these. (6) Total hours on duty and driving (7) The EOBR must record a code (2) If an EOBR fails, the driver must time for the prior 8-consecutive-day corresponding to the reason it has do the following: period, including the current duty day. ceased to function and the date and time (i) Note the failure of the EOBR. (7) The sequence of duty status for of that event. (ii) Reconstruct the record of duty each day, and the time of day and (8) The audible signal must be capable status for the current day and the location for each change of duty status, of being heard and discerned by the previous 7 days, less any days for which for each driver using the device. driver when seated in the normal the driver has records. (8) EOBR serial number or other driving position, whether the CMV is in (iii) Continue to prepare a identification, and identification motion or parked with the engine handwritten record of all subsequent number(s) of vehicle(s) operated that operating. The visual signal must be duty status until the device is again day. visible to the driver when the driver is operational. (9) Remarks, including fueling, seated in the normal driving position. (l) On-board information. Each waypoints, loading and unloading (9) The EOBR must be capable of commercial motor vehicle must have times, unusual situations, or violations. recording separately each driver’s duty onboard the commercial motor vehicle (10) Acknowledgement of an advisory status when there is a multiple-driver an information packet containing the message or signal concerning HOS operation. following items: limits. (10) The EOBR device/system must (11) Override of an automated duty (1) An instruction sheet describing identify sensor failures and edited and status change to driving if using the how data may be stored and retrieved annotated data when downloaded or vehicle for personal conveyance or for from the EOBR. reproduced in printed form. yard movement. (11) The EOBR device/system must (2) A supply of blank driver’s records (12) Date and time of crossing a State identify annotations made to all records, of duty status graph-grids sufficient to line (for purposes of fuel-tax reporting). the date and time the annotations were record the driver’s duty status and other (o) Performance of recorders. A motor made, and the identity of the person related information for the duration of carrier that uses EOBRs for recording making them. the current trip. drivers’ records of duty status instead of (12) If a driver or any other person (m) Submission of driver’s record of the handwritten record must ensure the annotates a record in an EOBR or an duty status. EOBR meets the following requirements EOBR support system, the annotation (1) The driver must submit in order to address all hours-of-service must not overwrite the original contents electronically, to the employing motor requirements in effect as of October 24, of the record. carrier, each record of the driver’s duty 2005: (p) Motor Carrier Requirements. status. (1) The EOBR must permit the driver (1) The motor carrier must ensure that (2) For motor carriers not subject to to enter information into the EOBR only the EOBR is calibrated, maintained, and the remedies provisions of part 385 when the commercial motor vehicle is recalibrated in accordance with the subpart F of this chapter, each record at rest. manufacturer’s specifications; the motor must be submitted within 13 days of its (2) The EOBR and associated support carrier must retain records of these completion. systems must, to the maximum extent activities. (3) For motor carriers subject to the practicable, be tamper resistant. The (2) The motor carrier’s drivers and remedies provisions of part 385 subpart EOBR must not permit alteration or other personnel reviewing and using F of this chapter, each record must be erasure of the original information EOBRs and the information derived submitted within 3 days of its collected concerning the driver’s hours from them must be adequately trained completion. of service, or alteration of the source regarding the proper operation of the (4) The driver must review and verify data streams used to provide that device. that all entries are accurate prior to information. (3) The motor carrier must maintain a submission to the employing motor (3) The EOBR must be able to perform second copy (back-up copy) of the carrier. a power-on self-test, as well as a self-test electronic hours-of-service files, by (5) The submission of the record of at any point upon request of an month, on a physical device different duty status certifies that all entries made authorized safety assurance official. The from that on which the original data are by the driver are true and correct. EOBR must provide an audible and stored. (n) EOBR display requirements. An visible signal as to its functional status. (4) The motor carrier must review the EOBR must have the capability of It must record the outcome of the self- EOBR records of its drivers for displaying all of the following test and its functional status as a compliance with part 395. information: diagnostic event record in conformance (q) Manufacturer’s self-certification. (1) The driver’s name and EOBR login with Appendix A of this part. (1) The EOBR and EOBR support ID number on all EOBR records (4) The EOBR must provide an systems must be certified by the associated with that driver, including audible and visible signal to the driver manufacturer as evidence that they have records in which the driver serves as a at least 30 minutes in advance of been sufficiently tested to meet the co-driver. reaching the driving time limit and the requirements of § 395.16 and Appendix (2) The driver’s total hours of driving on-duty limit for the 24-hour period. A of this part under the conditions in during each driving period and the (5) The EOBR must be able to track which they would be used. current duty day. total weekly on-duty and driving hours (2) The exterior faceplate of the EOBR (3) The total hours on duty for the over a 7- or 8-day consecutive period. must be marked by the manufacturer current duty day. The EOBR must be able to warn a driver with the text ‘USDOT–EOBR’ as

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evidence that the device has been tested compliance review personnel, and provide recorded according to a ‘‘flat file’’ database and certified as meeting the the ability of various third-party and model. A flat file is a simple database in performance requirements of § 395.16 proprietary EOBR devices to be which all information is stored in a plain text and Appendix A of this part. interoperable, a consistent electronic file format with one database ‘‘record’’ per line. 23. Add Appendix A to 49 CFR Part format and record layout for the electronic Each of these data records is divided into 395 to read as follows: RODS data to be recorded are necessary. This ‘‘fields’’ using delimiters (as in a comma- EOBR data elements dictionary provides a separate-values data file) or based on fixed Appendix A to Part 395—Electronic standardized and consistent format for EOBR column positions. Table 1 below presents the On-Board Recorder Performance output data. general concept of a flat data file consisting Specifications EOBR Database Concept of data ‘‘fields’’ (columns) and data ‘‘records’’ 1. Data Elements Dictionary for Electronic 1.2 Regardless of the particular electronic (rows). On-Board Recorders (EOBRs) file type (such as ASCII or XML) ultimately 1.1 To facilitate the electronic transfer of used for recording the electronic RODS records to roadside inspection personnel and produced by an EOBR, RODS data must be

1.3 The data elements dictionary off, self test, etc.), or when one or more data its unedited form and noted as ‘‘historical’’ describes the data fields component of the fields of an existing data record are later in the ‘‘Event Status Code’’ data field. The above framework. Individual data records amended. In the last case, the corrected EOBR Data Elements Dictionary is described must be generated and recorded whenever record must be recorded and noted as in Table 2. The event codes are listed in there is a change in driver duty status, an ‘‘current’’ in the ‘‘Event Status Code’’ data Table 3. EOBR diagnostic event (such as power-on/ field, with the original record maintained in

TABLE 2.—EOBR DATA ELEMENTS DICTIONARY

Data element Data element definition Type Length Valid values & notes

Driver Identification Data: Driver First Name ...... First name of the driver ...... A ...... 35 Driver Last Name ...... Last name, family name, or surname A ...... 35 of the driver. Driver PIN/ID...... Numeric identification number as- A ...... 40 signed to a driver by the motor car- rier. Vehicle Identification Data: Tractor Number ...... Motor carrier assigned identification A ...... 10 number for tractor unit. Trailer Number ...... Motor carrier assigned identification A ...... 10 number for trailer. Tractor VIN Number ...... Unique vehicle ID number assigned A ...... 17 by manufacturer according to U.S. DOT regulations. Co-Driver Data: Co-Driver First Name ...... First name of the co-driver ...... A ...... 35 Co-Driver Last Name ...... Last name, family name or surname A ...... 35 of the co-driver. Co-Driver ID...... Numeric identification number as- A ...... 40 signed to a driver by the motor car- rier.

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TABLE 2.—EOBR DATA ELEMENTS DICTIONARY—Continued

Data element Data element definition Type Length Valid values & notes

Company Identification Data: Carrier USDOT Number ...... USDOT number of the motor carrier N ...... 8 assigned by FMCSA. Carrier Name ...... Name or trade name of the motor A ...... 120 carrier company appearing on the Form MCS–150. Shipment Data: Shipping Document Number ...... Shipping document number ...... A ...... 40 Event Data: Event Sequence ID ...... A serial identifier for an event that is N ...... 4 0001 through 9999. unique to a particular vehicle and a particular day. Event Status Code ...... Character codes for the four driver A ...... 3 OFF=Off Duty; SB=Sleeper Berth; duty status change events, state D=On Duty Driving; ON=On Duty border crossing event, and diag- Not Driving; DG=Diagnostic. nostic events. Event Date ...... The date when an event occurred ..... N ...... 8 UTC (universal time) recommended. (Date) ...... Format: YYYYMMDD. Event Time ...... The time when an event occurred ..... N ...... 6 UTC (universal time) recommended. (Time) ...... Format: HHMMSS (hours, minutes, seconds). Event Latitude ...... Latitude of a location where an event N ...... 2, 6 Decimal format: XX.XXXXXX. occurred. Event Longitude...... Longitude of a location where an N ...... 3, 6 Decimal format: XXX.XXXXXX. event occurred. Place Name ...... Nearest populated place from the N ...... 5 Unique within a FIPS state code. FIPS55 list of codes for populated Lookup list derived from FIPS55. places. (Census Bureau 2000 Gaz- etteer ‘‘County Subdivision’’). Place Distance Miles ...... Distance in miles to nearest popu- N ...... 4 lated place from the location where an event occurred. Total Vehicle Miles ...... Total vehicle miles (as noted on vehi- N ...... 7 With total vehicle mileage recorded cle odometer or as measured by at the time of each event, vehicle any other compliant means such miles traveled while driving, etc., as vehicle location system, etc.). can be computed. Event Update Status Code ...... A status of an event, either Current A ...... 1 C=Current; H=Historical. (the most up-to-date update or edit) or Historical (the original record if the record has subse- quently been updated or edited). Diagnostic Event Code ...... For diagnostic events (events where A ...... 2 (See Table 3). the ‘‘Event Status Code’’ is noted as ‘‘DG’’), records the type of diag- nostic performed (e.g., power-on, self test, power-off, etc.). Event Error Code ...... Error code associated with an event A ...... 2 (See Table 3). Event Update Date ...... The date when an event record was N ...... 8 UTC (universal time) recommended. last updated or edited. (Date) ...... Format: YYYYMMDD. Event Update Time ...... Then time when an event record was N ...... 6 UTC (universal time) recommended. last updated or edited. (Time) ...... Format: HHMMSS (hours, minutes, seconds). Event Update Person ID ...... An identifier of the person who last A ...... 40 updated or edited a record. Event Update Text ...... A textual note related to the most re- A ...... 60 Brief narrative regarding reason for cent record update or edit. record update or edit.

TABLE 3.—EOBR DIAGNOSTIC EVENT CODES

Code class Code Brief description Full description

General System Diagnostic ...... PWR_ON Power on ...... EOBR initial power-on. General System Diagnostic ...... PWROFF Power off ...... EOBR power-off. General System Diagnostic ...... TESTOK test okay ...... EOBR self test successful. General System Diagnostic ...... SERVIC Service ...... EOBR Malfunction (return unit to factory for servicing). General System Diagnostic ...... MEMERR memory error ...... System memory error. General System Diagnostic ...... LOWVLT Low voltage ...... Low system supply voltage. General System Diagnostic ...... BATLOW battery low ...... Internal system battery backup low. General System Diagnostic ...... CLKERR clock error ...... EOBR system clock error (clock not set or defective). General System Diagnostic ...... BYPASS Bypass ...... EOBR system bypassed (RODS data not collected).

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TABLE 3.—EOBR DIAGNOSTIC EVENT CODES—Continued

Code class Code Brief description Full description

Data Storage Diagnostic ...... INTFUL .. internal memory full ...... Internal storage memory full (requires download or transfer to external storage). Data Storage Diagnostic ...... DATACC Data accepted ...... System accepted driver data entry. Data Storage Diagnostic ...... EXTFUL external memory full ...... External memory full (smartcard or other external data storage device full). Data Storage Diagnostic ...... EXTERR external data access error ...... Access external storage device failed. Data Storage Diagnostic ...... DLOADY download yes ...... EOBR data download successful. Data Storage Diagnostic...... DLOADN download no ...... Data download rejected (unauthorized request/wrong Pass- word). Driver Identification Issue ...... NODRID no driver ID ...... No driver information in system and vehicle is in motion. Driver Identification Issue ...... PINERR PIN error ...... Driver PIN/identification number invalid. Driver Identification Issue ...... DRIDRD Driver ID read ...... Driver information successfully read from external storage de- vice (transferred to EOBR). Peripheral Device Issue ...... DPYERR display error ...... EOBR display malfunction. Peripheral Device Issue ...... KEYERR keyboard error ...... EOBR keyboard/input device malfunction. External Sensor Issue ...... NO_GPS no GPS data ...... No GPS sensor information available. External Sensor Issue ...... NOLTLN no latitude longitude ...... No latitude and longitude from positioning sensor. External Sensor Issue ...... NOTSYC no time synchronization ...... Unable to synchronize with external time reference input. External Sensor Issue ...... COMERR communications error ...... Unable to communicate with external data link (to home office or wireless service provider). External Sensor Issue ...... NO_ECM no ECM data ...... No sensory information received from vehicle’s Engine Control Module (ECM). External Sensor Issue ...... ECM_ID ECM ID number mismatch...... ECM identification/serial number mismatch (with preprogrammed information).

2. Communications Standards for the intervals of 1 minute. This recorded 3.1.3.2 The date and time must be Transmittal of Data Files From Electronic information must be available for an audit of obtained, transmitted, and recorded in such On-Board Recorders (EOBRs) EOBR data, but is not required to be a way that it cannot be altered by a motor 2.1 EOBRs must produce and store RODS displayed on the EOBR’s visual output carrier or driver. in accordance with the file format specified device. 3.1.3.3 The time must be coordinated to in this Appendix and must be capable of a 3.1.1.3 Location codes derived from the Universal Time Clock (UTC) and must one-way transfer of these records through satellite or terrestrial sources, or a not drift more than 60 seconds per month. combination thereof must be used. The wired and wireless methods to authorized 3.1.4 File format and communication location codes must correspond, at safety officials upon request. protocols: The EOBR must produce and 2.2 EOBRs must be capable of transferring minimum, to the Census Bureau 2000 Gazetteer ‘‘County Subdivision’’ data. transfer a RODS file in the format and RODS using one of the following wired communication methods specified in standards: 3.1.2 Distance Traveled sections 1.0 and 2.0 of this Appendix. 2.2.1 Universal Serial Bus 2.0 3.1.2.1 Distance traveled may use units of 3.1.5 Environment 2.2.2 RS–232. miles or kilometers driving during each on- duty driving period and total for each 24- 3.1.5.1 Temperature—The EOBR must be 2.3 EOBRs must be capable of transferring hour period for each driver operating the able to operate in temperatures ranging from RODS using one of the following wireless CMV. ¥20 degrees F to 120 degrees F. standards: 3.1.2.2 If the EOBR records units of 3.1.5.2 Vibration and shock—The EOBR 2.3.1 Institute of Electrical and Electronics distance in kilometers, it must provide a must meet industry standards for vibration Engineers (IEEE) 802.11g means to display the equivalent distance in stability and for preventing electrical shocks English units. 2.3.2 Bluetooth to device operators. 3.1.2.3 If the EOBR obtains distance- 3.2 The EOBR and EOBR support systems 3. Certification of EOBRs To Assess traveled information from a source internal to must be certified by the manufacturer as ± Conformity With FMCSA Standards the CMV, the information must be 1 percent evidence that their design has been 3.1 The following outcome-based accurate to an odometer calibrated per 24- sufficiently tested to meet the requirements performance requirements must be included hour period. of § 395.16 under the conditions in which in the self-certification testing conducted by 3.1.2.4 If the EOBR obtains distance- they would be used. traveled information from a source external EOBR manufacturers: 3.3 The exterior faceplate of EOBRs must to the CMV, the information recorded must 3.1.1 Location— be marked by the manufacturer with the text be accurate to within ±1 percent of actual ‘‘USDOT–EOBR’’ as evidence that the device 3.1.1.1 The location description for the distance traveled per 24-hour period as duty status change must be sufficiently measured by a calibrated odometer. has been tested and certified as meeting the precise (within 300 meters) to enable performance requirements of § 395.16. 3.1.3 Date and Time enforcement personnel to quickly determine 4. Example of Grid Generated From EOBR the vehicle’s geographic location at each 3.1.3.1 The date and time must be Data change of duty status on a standard map or reported on the EOBR output record and road atlas. display for each change of duty status and at 4.1 The following picture shows an 3.1.1.2 When the CMV is in motion, such additional entries as specified under acceptable format for grid versions of logs location and time must be recorded at ‘‘Location.’’ generated by EOBR data.

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PART 396—INSPECTION, REPAIR AND § 396.9 Inspection of motor vehicles in not in compliance with § 385.511(d) of MAINTENANCE operation. this chapter. An ‘‘Out of Service * * * * * Vehicle’’ sticker shall be used to mark 24. The authority citation for part 396 (c) Motor vehicles declared ‘‘out of vehicles ‘‘out of service.’’ continues to read as follows: service.’’ (1) Authorized personnel shall * * * * * declare and mark ‘‘out of service’’ any Authority: 49 U.S.C. 31133, 31136, and motor vehicle which by reason of its Issued on: January 5, 2007. 31502; and 49 CFR 1.73. mechanical condition or loading would John H. Hill, Administrator. 25. Amend § 396.9 to revise paragraph likely cause an accident or a breakdown. (c)(1) to read as follows: Authorized personnel may declare and [FR Doc. 07–56 Filed 1–11–07; 8:45 am] mark ‘‘out of service’’ any motor vehicle BILLING CODE 4910–EX–P

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