78292 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION A. Motor Carrier Act of 1935 V. Wireless Electronic Transfer B. Motor Carrier Safety Act of 1984 W. Pre-2000 Model Year CMVs Federal Motor Carrier Safety C. Truck and Bus Safety and Regulatory X. Authenticated User and Account Administration Reform Act Management D. Hazardous Materials Transportation Y. ODND Time Authorization Act of 1994 Z. Data Transfer 49 CFR Parts 385, 386, 390, and 395 E. MAP–21 AA. USB2 [Docket No. FMCSA–2010–0167] VI. Discussion of Comments—Overview BB. Wireless Data Transfer Through Web A. Terminology in This Rulemaking Services RIN 2126–AB20 B. An Overview of Comments CC. Wireless Services via E-Mail VII. Discussion of Comments Related to DD. Bluetooth Electronic Logging Devices and Hours Scope and Exceptions to the Mandate EE. QR Codes and Transfer Jet of Service Supporting Documents A. Scope FF. Other Communications and B. Exceptions to the Requirement To Use Technology Options AGENCY: Federal Motor Carrier Safety ELDs—the 8 in 30-Day Threshold GG. Data Reporting During Roadside Administration (FMCSA), DOT. C. Requests for Exemption for Driveaway- Inspections ACTION: Final rule. Towaway Operations, Dealers, and Pre- HH. Data Transfer Compliance Monitoring Model Year 2000 Vehicles II. Printing SUMMARY: The Federal Motor Carrier D. Requests for Exceptions From the ELD JJ. Portable ELDs Safety Administration (FMCSA) amends Mandate for Certain Segments of the XI. Discussion of Comments Related to Costs the Federal Motor Carrier Safety CMV Industry and Benefits E. Exceptions for Small Business A. Cost and Analysis—General Regulations (FMCSRs) to establish: B. Costs Associated With ELDs Minimum performance and design F. Exceptions for CMVs Under 26,001 Pounds or Carrying Between 9 and 15 C. Cost and Analysis—Updating Existing standards for hours-of-service (HOS) Passengers (Including the Driver) Systems electronic logging devices (ELDs); G. ELDs Only for Unsafe Carriers or Drivers D. Paperwork Analysis requirements for the mandatory use of VIII. Discussion of Comments Related to E. Small Business these devices by drivers currently Supporting Documents F. Cost of a Printer required to prepare HOS records of duty A. Definition and Number G. Tax Credits and Relief To Off-Set Costs H. Basis for Evaluating Safety Benefits status (RODS); requirements concerning B. Categories C. Data Elements XII. Discussion of Comments Related to HOS supporting documents; and Procedures, Studies, Etc. D. Supporting Document Exemption for measures to address concerns about A. Registration and Certification Self-Compliance System harassment resulting from the B. Compliance Date and Grandfather E. Supporting Document Management Period mandatory use of ELDs. The F. Requirements When ELDs Malfunction C. Penalties and Enforcement requirements for ELDs will improve and Requests for Clarification Regarding compliance with the HOS rules. D. Enforcement Proceedings State Laws E. FMCSA Should Not Provide Mexican DATES: Effective Date: February 16, IX. Discussion of Comments Related to Motor Carriers With ELDs 2016. Harassment F. International Issues Compliance Date: December 18, 2017. A. Background and 2011 NPRM G. Effects of ELDs on Current Business Petitions for Reconsideration: The B. General Practices deadline for submitting petitions for C. Privacy; Ownership and Use of ELD H. Leased and Rented Vehicles reconsideration is January 15, 2016. Data I. Business Relationships With Owner- D. Tracking of Vehicle Location; Real Time The incorporation by reference of Operators Transmission of Data J. Carrier Liability certain publications listed in the E. Mute Function regulations is approved by the Director K. Safety Study F. Drivers’ Access to Own Records L. Harassment Survey of the Office of the Federal Register as G. Drivers’ Control Over RODS M. Legal Issues—Constitutional Rights: of February 16, 2016. H. Harassment Complaints Fourth and Fifth Amendments FOR FURTHER INFORMATION CONTACT: Mr. I. Matters Outside FMCSA’s Authority N. Short Movements or Movements Under Michael Huntley, Vehicle and Roadside X. Discussion of Comments Related to the a Certain Speed and Personal Use of a Operations Division, Office of Bus and Technical Specifications CMV A. Performance and Design Specifications O. Statutory Definition of ELD Truck Standards and Operations, B. Specific Performance Requirements Federal Motor Carrier Safety P. Roadside Enforcement C. Security Q. Out of Scope Comments Administration, 1200 New Jersey D. External Operating Factors and Failure XIII. Section-by-Section Analysis Avenue SE., Washington, DC 20590– Rate of ELDs A. Part 385—Safety Fitness Procedures 0001 or by telephone at 202 366–5370. E. Automatic Duty Status B. Part 386—Rules of Practice for Motor SUPPLEMENTARY INFORMATION: The F. CMV Position Carrier, Intermodal Equipment Provider, Agency organizes the final rule as G. Special Driving Categories Broker, Freight Forwarder, and H. Data Automatically Recorded follows: Hazardous Materials Proceedings I. Driver’s Annotation/Edits of Records C. Part 390—Federal Motor Carrier Safety I. Abbreviations and Acronyms J. Driver’s Data Transfer Initiation Input Regulations: General II. Executive Summary K. ELD Data File D. Part 395—Hours of Service of Drivers III. Public Participation L. Engine Power Up and Shut Down XIV. Regulatory Analyses IV. Overview M. Engine Synchronization Compliance A. Executive Order 12866 (Regulatory A. Today’s Final Rule Monitoring Planning and Review), Executive Order B. Regulatory History N. Engine Miles 13563 (Improving Regulation and C. Provisions of Previous Rulemaking O. Records Logged Under the Unidentified Regulatory Review) and DOT Regulatory Proposals That Are Not Included in Driver Profile Policies and Procedures Today’s Rule P. Power-On Status Time B. Regulatory Flexibility Act D. Coordination With the U.S. Department Q. Time C. Unfunded Mandates Reform Act of 1995 of Labor R. User List D. Executive Order 12988 (Civil Justice E. MCSAC Recommendations S. ELD Vehicle Interfaces Reform) F. Table Summary T. Vehicle Miles E. Executive Order 13045 (Protection of V. Legal Basis for the Rulemaking U. Vehicle Motion Status Children)

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F. Executive Order 12630 (Taking of Truck Rental and Leasing Association documents that must be retained has Private Property) TRALA been lowered from 10 in the SNPRM to G. Executive Order 13132 (Federalism) Truckload Carriers Association TCA 8 in today’s rule. In addition, the H. Executive Order 12372 United Motorcoach Association UMA timeframe in which a driver must (Intergovernmental Review) Vehicle Identification Number VIN I. Executive Order 13175 (Consultation and submit RODS and supporting Coordination with Indian Tribal II. Executive Summary documents to a motor carrier has been Governments This rule improves commercial motor extended from 8 to 13 days. J. Paperwork Reduction Act vehicle (CMV) safety and reduces the 2. Technical Specifications—Two of K. National Environmental Policy Act and overall paperwork burden for both the options for the required electronic Clean Air Act data transfer included in the SNPRM L. Executive Order 12898 (Environmental motor carriers and drivers by increasing the use of ELDs within the motor carrier (Quick Response (QR) codes and Justice) 1 M. Executive Order 13211 (Energy Effects) industry, which will, in turn, improve TransferJet) have been removed. N. National Technology Transfer and compliance with the applicable HOS Electronic data transfer must be made Advancement Act by either (1) wireless Web services and rules. Specifically, this rule: (1) ® O. E-Government Act of 2002 Requires new technical specifications email or (2) Bluetooth and USB 2.0. Furthermore, to facilitate roadside I. Abbreviations and Acronyms for ELDs that address statutory requirements; (2) mandates ELDs for inspections, and ensure authorized American Bus Association ABA drivers currently using RODS; (3) safety officials are always able to access American Moving & Storage Association clarifies supporting document this data, including cases of limited AMSA requirements so that motor carriers and connectivity an ELD must provide either American Pyrotechnics Association APA a display or printout. American Trucking Association ATA drivers can comply efficiently with HOS Associated General Contractors of America regulations; and (4) adopts both 3. Exemptions—Two optional AGC procedural and technical provisions exceptions are added from the required Automatic On-Board Recording Device aimed at ensuring that ELDs are not use of ELDs: (1) Driveaway-towaway AOBRD used to harass CMV operators. operations are not required to use an Commercial Vehicle Safety Alliance CVSA In August 2011, the United States ELD, provided the vehicle driven is part Commercial Driver’s License CDL Court of Appeals for the Seventh Circuit of the shipment; and (2) ELDs are not Commercial Motor Vehicle CMV vacated the April 2010 rule on required on CMVs older than model Department of Transportation DOT year 2000. Electronic Control Module ECM electronic on-board recorders (EOBRs), Electronic Logging Device ELD including the device performance 4. ELD Certification—To ensure that Electronic On-Board Recorder EOBR standards. See Owner-Operator Indep. ELD providers 2 have the opportunity Electronic Records of Duty Status eRODs Drivers Ass’n v. Fed. Motor Carrier for due process in the event that there Engine Control Unit ECU Safety Admin., 656 F.3d 580 (7th Cir. are compliance issues with their Extensible Markup Language XML 2011) available in the docket for this product, procedures are added that Federal Motor Carrier Safety Administration rulemaking. This rulemaking addresses FMCSA would employ if it identified FMCSA issues raised by that decision. problems with an ELD model before it Federal Motor Carrier Safety Regulations would remove the model from the FMCSRs All of the previous rulemaking Fleet Management System FMS notices, as well as notices announcing Agency’s list of certified products. Global Positioning System GPS certain Motor Carrier Safety Advisory In this rule, the Agency clarifies its Hazardous Materials HM Committee (MCSAC) meetings and supporting document requirements, Hours of Service HOS public listening sessions, referred to the recognizing that ELD records serve as Information Collection Request ICR devices and support systems used to the most robust form of documentation Institute of Makers of Explosives IME record electronically HOS RODS as for on-duty driving periods. FMCSA Initial Regulatory Flexibility Assessment EOBRs. Beginning with the neither increases nor decreases the IRFA burden associated with supporting International Brotherhood of Teamsters IBT supplemental notice of proposed International Foodservice Distributors rulemaking (SNPRM) for this documents. These changes are expected Association IFDA rulemaking (79 FR 17656, March 28, to improve the quality and usefulness of Motor Carrier Safety Advisory Committee 2014), the term ‘‘electronic logging the supporting documents retained, and MCSAC device (ELD)’’ was substituted for the consequently increase the effectiveness Motor Carrier Safety Assistance Program term ‘‘EOBR’’ in order to be consistent and efficiency of the Agency’s review of MCSAP with the term used in MAP–21. To the motor carriers’ HOS records during on- National Federation of Independent extent applicable, a reference to an ELD site compliance reviews and its ability Businesses NFIB includes a related motor carrier or to detect HOS rules violations. The National Limousine Association NLA Agency is currently unable to evaluate National Motor Freight Traffic Association provider central support system—if one NMFTA is used—to manage or store ELD the impact the changes to supporting National Propane Gas Association NPGA records. documents requirements would have on National Transportation Safety Board NTSB FMCSA based this rulemaking on the crash reductions. Notice of Proposed Rulemaking NPRM authority in a number of statutes, Office of Management and Budget OMB including the Motor Carrier Act of 1935, 1 Quick Response (QR) codes convert information Ohio Trucking Association OTA the Motor Carrier Safety Act of 1984, the into two dimensional barcodes that can be read On-Board Diagnostics OBD–II Truck and Bus Safety and Regulatory using common tools such as smart phones or hand scanners. TransferJet, the close-proximity transfer of On-Duty Not Driving ODND Reform Act of 1988, the Hazardous Owner-Operator Independent Driver data, allows a large amount of data to be transmitted Materials Transportation Authorization at high speed when two devices are held very close Association OOIDA together, or ‘‘bumped.’’ Quick Response QR Act of 1994 (HMTAA), and MAP–21. Today’s rule makes changes from the 2 ‘‘ELD provider’’ describes a manufacturer or Record of Duty Status RODS packager of an ELD that complies with the Regulatory Impact Analysis RIA SNPRM. The key changes are: appendix to subpart B of part 395 that is also Supplemental Notice of Proposed 1. Documents Requirements—The responsible for registering and certifying the ELD on Rulemaking SNPRM maximum number of supporting FMCSA’s Web site.

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Today’s rule contains provisions • Option 2: ELDs are mandated for all required data transfer technologies are calculated to prevent the use of ELDs to CMV operations where the driver is the same across the two options harass drivers. FMCSA explicitly required to complete RODS under 49 presented. The change in data transfer prohibits a motor carrier from harassing CFR 395.8. technologies from the SNPRM does not a driver, and provides that a driver may In today’s rule, FMCSA adopts a affect the per unit cost of the ELD. file a written complaint under slight variation of Option 2 from the However, in today’s rule the purchase § 386.12(b) if the driver was subject to SNPRM. Based on comments received price of the ELD was reduced from that harassment. Technical provisions that on the SNPRM, Options 3 and 4 are not used in the SNPRM, to reflect the most address harassment include a mute included in the final rule. Unlike the up-to-date prices consistent with the function to ensure that a driver is not SNPRM, to provide a backup means of technical requirements of the rule. This interrupted in the sleeper berth. Further, accessing data FMCSA will require change in data transfer technologies the design of the ELD allows only either a display or printout regardless of from the SNPRM also simplifies and limited edits of an ELD record by both the specific data transfer technologies enhances uniformity of enforcement. required, thus rendering Options 3 and the driver and the motor carrier’s agents For purposes of comparison, the 4 unnecessary. In response to comments and in either case the original record analysis from the SNPRM, including received to the SNPRM, the specific generated by the device cannot be Options 3 and 4, is available in the data transfer technologies required changed, which will protect the driver’s docket for this rulemaking. RODS from manipulation. under today’s rule are simplified, with QR Codes and TransferJet technologies The RIA details the costs and benefits Cost and Benefits eliminated. In the SNPRM, the required of this rule and discusses the methods The Regulatory Impact Analysis (RIA) data transfer technologies were the same by which they were derived. The major for today’s rule retains two of the four across the four options presented, with elements that contribute to the overall options put forward in the SNPRM: the only differences being the net benefits of the rulemaking are • Option 1: ELDs are mandated for all population the rule would apply to and shown below in Table 1. The figures CMV operations subject to 49 CFR part a specific requirement for the ability to presented are annualized using 7 395. print out data. In today’s rule, the percent and 3 percent discount rates.

TABLE 1—SUMMARY OF ANNUALIZED COSTS AND BENEFITS [2013 $ millions]

Option 1: all HOS drivers Option 2: (adopted) RODS drivers only 3% 7% 3% 7%

Total Benefits ...... $3,150 $3,124 $3,035 $3,010 Safety (Crash Reductions) ...... 694 687 579 572 Paperwork Savings...... 2,456 2,438 2,456 2,438 Total Costs ...... 2,298 2,280 1,851 1,836 New ELD Costs...... 1,348 1,336 1,042 1,032 AOBRD Replacement Costs ...... 2 2 2 2 HOS Compliance Costs ...... 936 929 797 790 CMV Driver Training Costs ...... 9 10 7 8 Enforcement Training Costs ...... 1 2 1 2 Enforcement Equipment Costs ...... 1 1 1 1

Net Benefits ...... 852 844 1,184 1,174

Under today’s rule, FMCSA estimates the keyword box, and click ‘‘Search.’’ allows limited exceptions to the ELD 1,844 crashes avoided annually and 26 Next, click the ‘‘Open Docket Folder’’ mandate. As indicated in § 395.1(e), lives saved annually. button and choose the document to drivers who operate using the timecard review. If you do not have access to the exception are not required to keep TABLE 2—ESTIMATED REDUCTIONS IN Internet, you may view the docket RODS and will not be required to use CRASHES online by visiting the Docket ELDs. The following drivers are Management Facility in Room W12–140 excepted in § 395.8(a)(1)(iii) from Option 1: Option 2: on the ground floor of the DOT West installing and using ELDs and may all HOS RODS Building, 1200 New Jersey Avenue SE., continue to use ‘‘paper’’ RODS: 3 drivers • drivers only Washington, DC 20590, between 9 a.m. Drivers who use paper RODS for and 5 p.m., e.t., Monday through Friday, not more than 8 days during any 30 day Crashes Avoided .. 2,217 1,844 except Federal holidays. period. Injuries Avoided .... 675 562 • Drivers who conduct driveaway- IV. Overview Lives Saved ...... 31 26 towaway operations, where the vehicle A. Today’s Final Rule being driven is the commodity being III. Public Participation Today’s rule mandates ELD use for delivered. To view comments, as well as any HOS compliance. It applies to most documents identified in this preamble motor carriers and drivers who are 3 ‘‘Paper RODS’’ means RODS that are not kept on as available in the docket, go to an ELD or AOBRD, but instead are either recorded currently required to prepare and retain manually in accordance with § 395.8(f) or on a http://www.regulations.gov. Insert the paper RODS to comply with HOS computer not synchronized to the vehicle or that docket number, FMCSA–2010–1067, in regulations under part 395. Today’s rule otherwise does not qualify as an ELD or AOBRD.

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• Drivers of vehicles manufactured If a driver submits more than eight alternative system would ensure before model year 2000. documents to the motor carrier for a compliance with the HOS regulations. This exception is limited to the ELD single day, paragraph (d)(3) requires that Section 395.11(h) references the requirement only; these drivers are still the motor carrier must include the first procedures for applying for an bound by the RODS requirements in 49 and last documents for that day among exemption for a self-compliance system. the eight documents that must be CFR part 395 and must prepare paper 2. Harassment logs when required unless they retained. If a driver submits fewer than voluntarily elect to use an ELD. eight documents, the motor carrier must Today’s rule includes a definition of As required by MAP–21, § 395.8(a)(1) keep each document. ‘‘harassment,’’ which covers an action directs a motor carrier operating CMVs Supporting documents consist of the by a motor carrier toward one of its to install and require each of its drivers following five categories, described in drivers that the motor carrier knew, or § 395.11(c): should have known, would result in the to use an ELD to record the driver’s duty • status no later than December 18, 2017. Bills of lading, itineraries, driver violating § 392.3, which prohibits Drivers and motor carriers currently schedules, or equivalent documents that an ill or fatigued driver from operating using § 395.15-compliant Automatic indicate the origin and destination of a CMV, or part 395, the HOS rules. each trip; Harassment must involve information Onboard Recorders (AOBRDs), however, • are allowed to continue to use AOBRDs Dispatch records, trip records, or available to the motor carrier through an for an additional 2 years after that date. equivalent documents; ELD or other technology used in • Expense receipts; combination with and not separable 1. Supporting Documents • Electronic mobile communication from an ELD. In § 390.36(b), FMCSA records, reflecting communications Under § 395.11(d), motor carriers explicitly prohibits a motor carrier from transmitted through a fleet management must retain up to 8 supporting harassing a driver. system (FMS); and Today’s rule adopts a regulatory documents for every 24-hour period a • Payroll records, settlement sheets, prohibition on harassment, as defined, driver who uses ELDs is on duty. or equivalent documents that indicates subject to a civil penalty in addition to Section 395.8(k) continues to require payment to a driver. the penalty for the underlying violation. that motor carriers retain RODS and Except for drivers who use paper The rule also has other provisions supporting documents for 6 months. RODS, there is no requirement for intended to ensure that ELDs are not New § 395.11(b) specifies that drivers drivers or motor carriers to retain other used to harass drivers. Some of these are must submit supporting documents to types or categories of documents. If a technical provisions intended to guard the motor carrier no later than 13 days driver keeps a paper RODS under against harassment. Others are after receiving them. While ELDs are § 395.8(a)(1)(iii), § 395.11(d)(4) states procedural, to give drivers recourse highly effective at monitoring that toll receipts must be retained as when they are harassed. compliance with HOS rules during well. For drivers using paper RODS, the Among the technical solutions driving periods, supporting documents toll receipts do not count in applying addressing harassment is a required are still needed to verify on-duty not the eight-document cap. In applying the mute function for FMSs with ELD driving time (ODND). In § 395.2, today’s limit on the number of documents, functionality that would be used to rule defines ‘‘supporting document.’’ To § 395.11(d)(2) states that all information comply with this rule. The mute be considered supporting documents, contained in an electronic mobile function ensures that a driver is not they need to meet certain criteria in communication record, such as interrupted by an FMS that includes an § 395.11(c)(2). The eight documents communication records kept by an FMS, ELD function when the driver is in the should contain these elements from will be counted as one document per sleeper berth. FMCSA emphasizes that a § 395.11(c)(2)(i): duty status day. minimally compliant ELD is not • Driver name or carrier-assigned Section 395.11(e) requires motor required to have voice or text message identification number, either on the carriers to retain supporting documents communication capabilities or to document or on another document in a way that allows them to be matched produce audible alerts or alarms. For enabling the carrier to link the to a driver’s RODS. Section 395.11 (f) ELDs that have the ability to generate document to the driver, or the vehicle prohibits drivers or carriers from audible signals, however, today’s rule unit number if that number can be destroying or defacing a supporting requires that the devices have volume linked to the driver; document or altering information on a control. This control must either • Date; document. Section 395.11(g) requires automatically engage, or allow the • Location (including name of nearest the driver to make supporting driver to turn off or mute the ELD’s city, town, or village); and documents in his or her possession audible output when the driver puts the • Time. available to an authorized Federal, ELD into a sleeper berth status, and, in FMCSA acknowledges that sometimes State, or local official on request. the case of co-drivers, when no other drivers will not receive documents that However, the driver only has to provide driver has logged into the ELD in an on- meet all these criteria. If a driver has the documents in the format in which duty driving status. fewer than eight documents that include the driver has them available. The design of the ELD allows only the four elements under Self-compliance systems. On a case- limited edits of an ELD record by both § 395.11(c)(2)(ii), a document that by-case basis, FMCSA may authorize the driver and the motor carrier’s agents contains all of the elements except exemptions to allow a motor carrier to and in either case the original record ‘‘time’’ is considered a supporting use a supporting document self- generated by the device cannot be document; otherwise, it is not compliance system, as required by changed. Drivers may edit, enter considered a supporting document. section 113 of HMTAA. Using the missing information into, and annotate FMCSA notes that there is no obligation procedures already in 49 CFR part 381, the ELD records but the original record on a motor carrier to create or annotate subpart C, FMCSA will consider will be retained. The ELD prevents documents that it did not otherwise requests for exemption from the electronically-recorded driving time generate or receive in its normal course retention and maintenance requirements from being shortened. A motor carrier of business. for supporting documents. This may request edits to a driver’s RODS to

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ensure accuracy. However, for the ELDs must meet standard requirements the Web site that their products meet carrier-proposed changes, the driver which include recording certain the technical specifications in today’s must confirm them and certify and information related to a driver’s HOS rule. FMCSA will publish compliance submit the updated RODS. Section status, but they are not required to track test procedures to assist providers in 395.30(c)(2) requires all edits, whether a CMV or driver in real time. ELDs are determining whether their products made by a driver or the motor carrier, not required to include a capability to meet the requirements. ELD providers be annotated to document the reason for communicate between the driver and are not required to use FMCSA’s the change. All of these procedures and the motor carrier. All ELDs, however, compliance test procedures. They may design features will help a driver retain must capture and transfer identical data use any test procedures they deem control of the RODS, and ensure against regarding a driver’s HOS status to appropriate, but FMCSA will use the harassment. authorized safety officials. Although an compliance test procedures during any The rule requires that anyone making ELD may be part of an FMS, the ELD investigation and rely upon the results edits to an ELD record have a unique functions required by this rule are from that procedure in making any login ID. Drivers must have access to limited to automatically recording all preliminary determinations of whether a their own ELD records without having driving time, and intermittently system satisfies the requirements of to request access through their motor recording certain other information. The today’s rule. carriers, ensuring that drivers can ELD functions will make it easy for the If the Agency believes an ELD model review the ELD record and determine driver to record off duty, sleeper berth, does not meet the required standards, whether unauthorized edits/annotations and ODND time, and transfer that new section 5.4 of the technical have been entered. information to authorized safety specifications prescribes a process of Section § 395.26 describes ELD data officials and motor carriers. remedying the problem, or, if necessary, records, including location data, when Section 395.26 provides that the ELD removing that model from FMCSA’s the driver changes duty status, when a automatically record the following data registration Web site. driver indicates personal use or yard elements at certain intervals: date; time; To meet roadside electronic data moves, when the CMV engine powers location information; engine hours; reporting requirements, under section up and shuts down, and at 60-minute vehicle miles; and identification 4.9.1 of the technical specifications, an intervals when the vehicle is in motion. information for the driver, the ELD must support one of two options FMCSA emphasizes that it does not authenticated user, the vehicle, and the for different types of electronic data require real-time tracking of CMVs or motor carrier. Unless the driver has transfer. The first option is a telematics- the recording of precise location indicated authorized personal use of the type ELD. At a minimum, it must information in today’s rule. vehicle, those data elements are electronically transfer data to an For the purposes of HOS enforcement, automatically recorded when the driver authorized safety official on demand via FMCSA requires all ELDs to record indicates a change of duty status or a wireless Web services and email. The location in a way that provides an change to a special driving category. second option is a local transfer accuracy of approximately a 1-mile When the driver logs into or out of the method-type ELD. At a minimum, it radius during on-duty driving periods. ELD, or there is a malfunction or data must electronically transfer data to an However, when a CMV is operated for diagnostic event, the ELD records all the authorized safety official on demand via authorized personal use, the position data elements except geographic USB2.0 and Bluetooth. Additionally, reporting accuracy, as required by location. When the engine is powered both types of ELDs must be capable of section 4.3.1.6(f), is reduced to an up or down, the ELD records all the data displaying a standardized ELD data set approximate 10-mile radius, to further elements required by § 395.26. When a in the format specified in this rule to an protect the driver’s privacy. While a CMV is in motion and the driver has not authorized safety official on demand. To motor carrier could employ technology caused some kind of recording in the ensure that authorized safety officials that provides more accurate location previous hour, the ELD will are always able to receive the HOS data information internally, when the ELD automatically record the data elements. during a roadside inspection, a driver transmits data to authorized safety However, if a record is made during a must be able to provide either the officials, the location data will be period when the driver has indicated display or a printout when an limited to the reduced proximities. authorized personal use, some elements authorized safety official requests a Today’s rule includes a new process will be left blank and location physical display of the information. for driver complaints related to information will be logged with a Display and printouts will each contain harassment involving ELDs. resolution of only a single decimal point the same standardized data set Civil penalties against motor carriers (approximately 10-mile radius). identified in section 4.8.1.3 of the found to be harassing drivers are In addition to the information that the technical specifications. Motor carriers governed under Appendix B to Part 386 ELD records automatically, both the will be able to select an ELD that works and today’s rule addresses how motor carrier and the driver must input for their business needs since both types penalties for harassment will be manually some information in the ELD. of ELDs will transfer identical data sets assessed (Part 386, Appendix B, (a)(7)). The driver may select on the ELD an to law enforcement. Because harassment will be considered applicable special driving category, or 4. Enforcement in cases of alleged HOS violations, the annotate the ELD record to explain penalty for harassment is in addition to driving under applicable exceptions, A driver must submit supporting the underlying violation under 49 CFR including personal conveyance if documents to the driver’s employer 392.3 or part 395. An underlying configured by the motor carrier. within 13 days. Today’s rule does not violation must be found in order for a FMCSA will provide a list of require the driver to keep any harassment penalty to be assessed. provider-certified ELDs on its Web site. supporting documents in the vehicle. Today’s rule requires interstate motor However, FMCSA notes that any 3. Technical Specifications; carriers to use only an ELD that appears supporting documents that are in a Implementation Period on that list of registered ELDs. ELD vehicle during a roadside inspection Today’s rule includes technical providers must register through a must be shown to an authorized safety specifications for an ELD device. All FMCSA Web site, and certify through official on request.

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Authorized safety officials who records reviewed during a compliance rulemaking)). On August 26, 2011, the conduct roadside enforcement activities review, that a motor carrier had a 10 Seventh Circuit vacated the April 2010 (i.e., traffic enforcement and percent or greater violation rate rule. The court held that, contrary to a inspections) or compliance safety (‘‘threshold rate violation’’) for any HOS statutory requirement, the Agency failed investigations will be able to select a regulation listed in a new Appendix C to address the issue of driver minimum of one method of electronic to part 385, FMCSA would have issued harassment.6 data transfer from each type of ELD. the carrier an EOBR remedial directive. On February 13, 2012, FMCSA States will have the option of choosing The motor carrier would then have been announced its intent to move forward a minimum of one ‘‘telematics’’ required to install EOBRs in all of its with an SNPRM that would propose electronic data transfer method CMVs regardless of their date of technical standards for electronic (wireless Web services or email) and manufacture and use the devices for logging devices, address driver one ‘‘local’’ electronic data transfer HOS recordkeeping for a period of 2 harassment issues, and propose revised method (USB 2.0 or Bluetooth) for the years, unless the carrier (i) already requirements on HOS supporting electronic transfer of ELD data. equipped its vehicles with AOBRDs documents (77 FR 7562). Additionally, meeting the Agency’s current 5. Implementation Period the Agency stated it would hold public requirements under 49 CFR 395.15 prior listening sessions and task the MCSAC The Agency will make its compliance to the finding, and (ii) demonstrated to to make recommendations related to the test available and its Web site available FMCSA that its drivers understand how proposed rulemaking. for ELD providers to register and certify to use the devices. At that time, the On May 14, 2012, FMCSA published ELDs on or shortly following the Agency estimated that the remedial a rule (77 FR 28448) to rescind both the effective date of today’s rule. A motor directive aspect of 2010 rule would be April 5, 2010, rule (75 FR 17208) and carrier may then elect to voluntarily use applicable to about 2,800 motor carriers subsequent corrections and ELDs listed on the Web site. Prior to the in the first year and 5,700 motor carriers modifications to the technical rule’s effective date, February 16, 2016, each year thereafter. specifications (75 FR 55488, Sept. 13, the Agency will issue a policy The 2010 rule would have also 2010), in response to the Seventh addressing how ELDs will be handled changed the safety fitness standard to Circuit’s decision to vacate the 2010 for HOS enforcement purposes during take into account a remedial directive EOBR rule. this voluntary period. Beginning on the when determining fitness. Additionally, As a result of the Seventh Circuit’s rule’s compliance date, December 18, to encourage industry-wide use of vacatur, the technical specifications that 2017, the Agency will apply today’s rule EOBRs, FMCSA revised its compliance were to be used in the 2011 NPRM were in its enforcement activities. If a motor review procedures to permit rescinded. Because the requirements for carrier elects to voluntarily use ELDs in examination of a random sample of AOBRDs were not affected by the advance of the rule’s compliance date, drivers’ records of duty status after the Seventh Circuit’s decision, motor the provisions of the rule prohibiting initial sampling, and provided partial carriers relying on electronic devices to harassment of drivers apply. However, relief from HOS supporting documents monitor HOS compliance are currently those motor carriers that have installed requirements, if certain conditions were governed by the Agency’s rules a compliant AOBRD before the satisfied, for motor carriers that regarding the use of AOBRDs in 49 CFR compliance date will have the option to voluntarily use compliant EOBRs. 395.15, originally published in 1988. On February 1, 2011, FMCSA continue using an AOBRD through There are no new standards currently in published an NPRM to expand the December 16, 2019. effect to replace these dated technical The supporting document provisions electronic logging requirements from the specifications. Furthermore, because the of today’s rule also take effect as of the 2010 rule to a much broader population entire rule was vacated, FMCSA was rule’s compliance date. The effective of motor carriers (76 FR 5537). There unable to grant relief from supporting date of provisions addressing were several opportunities for public document requirements to motor harassment is tied to the use of an ELD. input, including a notice inviting 7 comment on the issue of harassment, carriers voluntarily using EOBRs. B. Regulatory History public listening sessions, MCSAC FMCSA proposed new technical For a more extensive regulatory meetings,4 and an online commenting standards for ELDs and requiring the history and background of electronic system pilot program called Regulation 6 logging device regulations, please see 5 656 F.3d at 589. At the time of the court’s Room. decision, 49 U.S.C. 31137(a) read as follows: ‘‘Use the April 5, 2010 Final Rule (75 FR In June 2010, the Owner-Operator of Monitoring Devices.—If the Secretary of 17208), February 1, 2011 NPRM (76 FR Independent Drivers Association Transportation prescribes a regulation about the use 5537), and the March 28, 2014 SNPRM (OOIDA) filed a petition in the U.S. of monitoring devices on commercial motor (79 FR 17656). See also the table titled, Court of Appeals for the Seventh Circuit vehicles to increase compliance by operators of the vehicles with hours of service regulations of the ‘‘Timeline of Regulatory and Judicial seeking a review of the 2010 rule Secretary, the regulation shall ensure that the Actions after 2010 Related to this (Owner-Operator Indep. Drivers Ass’n v. devices are not used to harass vehicle operators. Rulemaking,’’ in Section IV, F, below. Fed. Motor Carrier Safety Admin., 656 However, the devices may be used to monitor The 2010 EOBR 1 rule established F.3d 580 (7th Cir. 2011) (decision productivity of the operators.’’ MAP–21 revised section 31137, which no longer expressly refers to technical specifications for an electronic available in the docket for this ‘‘productivity.’’ However, FMCSA believes that, as logging device, but the rule concerned long as an action by a motor carrier does not only remedial and voluntary use of 4 The MCSAC provides advice and constitute harassment that would be prohibited EOBRs (75 FR 17208, Apr. 5, 2010). The recommendations to the Administrator of FMCSA under this rulemaking, a carrier may legitimately on motor carrier safety programs and motor carrier use the devices to improve productivity or for other rule would have required that motor safety regulations. MCSAC members are appointed appropriate business practices. carriers with demonstrated serious by the Administrator for two-year terms and 7 The Agency’s June 2010 guidance, ‘‘Policy on noncompliance with the HOS rules be includes representatives of the motor carrier safety the Retention of Supporting Documents and the Use subject to mandatory installation of advocacy, safety enforcement, industry, and labor of Electronic Mobile Communication/Tracking communities. Technology,’’ which granted certain motor carriers EOBRs meeting the new performance 5 The Regulation Room is available on line at: limited relief from the requirement to retain certain standards included in the 2010 rule. If http://archive.regulationroom.org/eobr, last supporting documents, was not affected by the FMCSA determined, based on HOS accessed January 2, 2015. Seventh Circuit decision.

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use of ELDs on March 28, 2014 in the proposed in the SNPRM. For example, other elements of the FMCSRs. The SNPRM (79 FR 17656). These technical given the comments received in elimination of the HOS Management standards were in response to the response to the NPRM and additional System proposed in the NPRM does not vacatur of the 2010 rule, the MCSAC’s information brought to the Agency’s alter this obligation. recommendations (December 16, 2011 attention, FMCSA decided not to The Agency eliminated the suggestion and February 8, 2012 reports), the require an HOS management system as that a single supporting document could public listening sessions (March 12, part of this rulemaking. satisfy the motor carrier’s obligation. The NPRM also proposed that a single 2012 and April 26, 2012), and the The Agency agreed with comments supporting document would be enactment of MAP–21. The Agency also submitted at the NPRM stage that this sufficient for the beginning and end of proposed new requirements for suggestion was not realistic and did not each ODND period if that document supporting documents and ways to include it in the SNPRM. Similarly, the contained the required elements. In ensure that ELDs are not used to harass Agency eliminated the requirement that addition, the NPRM also proposed a drivers. The regulatory text proposed in a motor carrier certify the unavailability motor carrier to certify the lack of any the 2014 SNPRM superseded the of supporting documents based on required supporting document for regulatory text proposed in the 2011 comments received in response to the prescribed periods. Given commenters NPRM. NPRM. FMCSA conducted a study of the overwhelming opposition to the HOS potential for safety benefits with the use Management System, these 2. Technical Specifications of ELDs, and published the results of requirements were not re-proposed in The 2011 NPRM relied upon the this study in the docket on May 12, the 2014 SNPRM and are not included technical specifications in the EOBR 1 2014. in the final rule. It is a paramount responsibility, rule, which the Seventh Circuit vacated FMCSA also conducted a survey of however, of all motor carriers to monitor and which are now obsolete. The 2014 drivers and motor carriers concerning their drivers’ HOS compliance. As SNPRM proposed new technical the potential for the use of ELDs to explained in prior administrative specifications, and today’s rule makes result in harassment, and docketed the decisions of the Agency, a motor carrier some modifications to those technical results of this survey on November 13, has an obligation to verify HOS specifications. Below is a comparison of 2014. compliance of its drivers (See, e.g., In the technical specifications in the C. Provisions of Previous Rulemaking the Matter of Stricklin Trucking Co., existing 1988 AOBRD rule, the 2010 Proposals That Are Not Included in Inc., Docket No. FMCSA–2011–0127– EOBR 1 rule, the 2014 SNPRM, and Today’s Rule 0013, at 10–13 (Order on today’s rule. Motor carriers that have Reconsideration Mar. 20, 2012)).8 Motor installed compliant AOBRDs before the 1. Supporting Document Provisions carriers have a duty to ensure that their compliance date of today’s rule (2 years A number of provisions relating to a drivers are complying with the from today’s publication date) may motor carrier’s obligations concerning requirements and prohibitions imposed continue use of these devices for an supporting documents that were on them in the HOS regulations, just as additional 2 years after the compliance included in the 2011 NPRM were not re- they are responsible for complying with date.

TABLE 3—COMPARISON OF TECHNICAL SPECIFICATIONS

Feature/Function 1988 AOBRD Rule 2010 EOBR Rule 2014 ELD SNPRM Today’s ELD Final rule

Integral Synchro- Integral synchroni- Integral synchronization re- Integral synchronization with Integral synchronization inter- nization. zation required, but quired, defined to specify sig- the CMV engine,* to auto- facing with the CMV engine term not defined in nal source internal to the matically capture engine ECM, to automatically cap- the FMCSRs. CMV. power status, vehicle motion ture engine power status, ve- status, miles driven, engine hicle motion status, miles hours.*. driven, engine hours. For model year 2000 and later, (CMVs older than model year interfacing with engine con- 2000 exempted). trol module (ECM). Recording Loca- Required at each Require automated entry at Require automated entry at Require automated entry at tion Information. change of duty sta- each change of duty status each change of duty status, each change of duty status, tus. Manual or and at 60-minute intervals at 60-minute intervals while at 60-minute intervals while automated. while CMV in motion. CMV is in motion, at engine- CMV is in motion, at engine- on and engine-off instances, on and engine-off instances, and at beginning and end of and at beginning and end of personal use and yard personal use and yard moves. moves.

8 Available at http://www.regulations.gov.

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TABLE 3—COMPARISON OF TECHNICAL SPECIFICATIONS—Continued

Feature/Function 1988 AOBRD Rule 2010 EOBR Rule 2014 ELD SNPRM Today’s ELD Final rule

Graph Grid Dis- Not required—‘‘time Not required on EOBR, digital An ELD must be able to An ELD must be able to play. and sequence of file to generate graph grid on present a graph grid of driv- present a graph grid of driv- duty status enforcement official’s port- er’s daily duty status er’s daily duty status changes’’. able computer. changes either on a display changes either on a display or on a printout. or on a printout. HOS Driver Advi- Not addressed ...... Requires notification at least 30 HOS limits notification not re- HOS limits notification not re- sory Messages. minutes before driver quired.. quired. reaches 24-hour and 7/8 day ‘‘Unassigned driving time/miles’’ ‘‘Unassigned driving time/miles’’ driving and on-duty limits. warning provided upon login. warning provided upon login. Device ‘‘Default’’ Not addressed ...... On-duty not driving when the On-duty not driving, when CMV On-duty not driving, when CMV Duty Status. vehicle is stationary (not has not been in-motion for 5 has not been in-motion for 5 moving and the engine is off) consecutive minutes, and consecutive minutes, and 5 minutes or more. driver has not responded to driver has not responded to an ELD prompt within 1 an ELD prompt within 1 minute. No other non-driver- minute. No other non-driver- initiated status change is al- initiated status change is al- lowed. lowed. Clock Time Drift Not addressed ...... Absolute deviation from the ELD time must be syn- ELD time must be syn- time base coordinated to chronized to UTC, absolute chronized to UTC, absolute (UTC) Coordinated Universal deviation must not exceed 10 deviation must not exceed 10 Timeshall not exceed 10 min- minutes at any point in time. minutes at any point in time. utes at any time. Communications Not addressed—fo- Wired: USB 2.0 implementing Primary: Wireless Web services Two Options: 1-Telematics: As Methods. cused on interface Mass Storage Class 08H for or Bluetooth 2.1 or Email a minimum, the ELD must between AOBRD driverless operation.. (SMTP) or Compliant Printout. transfer data via both wire- support systems Wireless: IEEE 802.11g, CMRS Backup Wired/Proximity: USB less Web services and wire- and printers. 2.0 * and (Scannable QR less email codes, or TransferJet *). 2-‘‘Local Transfer’’: As a min- * Except for ‘‘printout alter- imum, the ELD must transfer native’’. data via both USB 2.0 and Bluetooth. Both types of ELDs must be capable of displaying a standardized ELD data set to authorized safety officials via display or printout. Resistance to AOBRD and support Must not permit alteration or ELD must not permit alteration ELD must not permit alteration Tampering. systems, must be, erasure of the original infor- or erasure of the original in- or erasure of the original in- to the maximum ex- mation collected concerning formation collected con- formation collected con- tent practical, the driver’s HOS, or alter- cerning the driver’s ELD cerning the driver’s ELD tamperproof. ation of the source data records or alteration of the records or alteration of the streams used to provide that source data streams used to source data streams used to information. provide that information. ELD provide that information. ELD must support data integrity must support data integrity check functions. check functions. Identification of Must identify sensor Device/system must identify ELD must have the capability ELD must have the capability Sensor Failures failures and edited sensor failures and edited to monitor its compliance to monitor its compliance and Edited data. and annotated data when (engine connectivity, timing, (engine connectivity, timing, Data. downloaded or reproduced in positioning, etc.) for detect- positioning, etc.) for detect- printed form. able malfunctions and data able malfunctions and data inconsistencies. ELD must inconsistencies. ELD must record these occurrences. record these occurrences.

D. Coordination With the U.S. agencies also have been in E. MCSAC Recommendations Department of Labor communication concerning their Under Task 11–04, FMCSA tasked the FMCSA has worked with the U.S. respective authorities and complaint MCSAC with clarifying the functionality Department of Labor to clarify and procedures and, in the Spring of 2014, of communications standards originally reinforce the procedures of both entered a memorandum of adopted in the April 2010 rule, in agencies, including those pertaining to understanding to facilitate coordination appendix A to part 395—Electronic On- harassment. The Department of Labor and cooperation between FMCSA and Board Recorder Performance administers the whistleblower law the Occupational Safety and Health Specifications.10 The Agency asked the enacted as part of the Surface Administration concerning statutory Transportation Assistance Act (49 provisions addressing retaliation and owadisp.show_document?p_table=MOU&p_ U.S.C. 31105). FMCSA and the coercion as well as the exchange of id=1305. Department of Labor have previously safety and health allegations.9 10 Motor Carrier Safety Advisory Committee (MCSAC) Task Statement, Task 11–04, Electronic consulted on particular cases or referred On-Board Recorders (EOBR) communications drivers to the appropriate agency based 9 Copy of Memorandum of Understanding protocols, security, interfaces, and display of hours- on the nature of the concern. The available at https://www.osha.gov/plsoshaweb/ Continued

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MCSAC to make recommendations on The MCSAC report was delivered to ways to address potential harassment of technical subjects to improve the the Administrator on December 16, drivers related to the use of EOBRs. This functionality of the information 2011.11 The report consisted of report was delivered to the reporting requirements after considering comments on, and recommended Administrator on February 8, 2012.12 advice from technical experts and input changes to, the April 2010 rule and a This report addressed a number of from stakeholders. discussion of issues the committee issues concerning harassment, including The MCSAC created the EOBR believed FMCSA should consider while the definition of harassment, complaint Implementation Subcommittee, which developing the rule. The committee’s procedures, civil penalties, and the met numerous times in late 2011. The recommendations focused on: Technical potential for harassment by law MCSAC also held public meetings on specifications, including required data enforcement. August 30–31 and December 5–6, 2011, elements, location data, and device FMCSA considered the MCSAC to discuss the subcommittee’s display requirements; and recommendations submitted under Task recommendations. In its notice implementation considerations, 11–04 and Task 12–01 during the announcing the subcommittee meetings including grandfather provisions, rulemaking process. Many of the new (76 FR 62496, Oct. 7, 2011), FMCSA product certification procedures, and requirements in today’s rule are stated, ‘‘[t]he Agency will consider the exceptions for early adopters. consistent with the MCSAC MCSAC report in any future rulemaking Under Task 12–01, FMCSA tasked the recommendations. to reestablish functional specifications MCSAC to present information the for EOBRs.’’ Agency should consider as it develops F. Table Summary

TABLE 4—TIMELINE OF REGULATORY AND JUDICIAL ACTIONS SINCE THE 2010 RULE

Title Type of action, RIN Citation, date Synopsis

Electronic On-Board Recorders for Hours-of- Final rule ...... 75 FR 17208, Apr. 5, Established new performance standards for Service Compliance. RIN 2126–AA89 ...... 2010. EOBRs, required EOBRs to be installed in Docket No. 2004– CMVs for motor carriers that have dem- 18940. onstrated serious noncompliance; set in- centives for voluntary usage of EOBRs. Policy on the Retention of Supporting Docu- Notice of Regulatory 75 FR 32984, June Provided notice to the motor carrier industry ments and the Use of Electronic Mobile Guidance and Policy 10, 2010. and the public of regulatory guidance and Communication/Tracking Technology in As- Change.. policy changes regarding the retention of sessing Motor Carriers’ and Commercial No RIN...... supporting documents and the use of elec- Motor Vehicle Drivers’ Compliance With the No docket number...... tronic mobile communication/tracking tech- Hours of Service Regulations. nology in assessing motor carriers’ and commercial motor vehicle drivers’ compli- ance with the HOS regulations. Electronic On-Board Recorders for Hours-of- Final rule; Technical 75 FR 55488, Sept. Amended requirements for the temperature Service Compliance. amendments, re- 13, 2010. range in which EOBRs must be able to op- sponse to petitions erate, and the connector type specified for for reconsideration,. the USB interface. RIN 2126–AA89 ...... Docket No. 2004– 18940. Electronic On-Board Recorders and Hours-of- NPRM ...... 76 FR 5537, Feb. 1, Required all motor carriers currently required Service Supporting Documents. RIN 2126–AB20 ...... 2011. to maintain RODS for HOS recordkeeping Docket No. FMCSA– to use EOBRs instead; relied on the tech- 2010–0167. nical specifications from the April 2010 final rule, and reduced requirements to retain supporting documents. Electronic On-Board Recorders and Hours-of- NPRM; extension of 76 FR 13121, Mar. 10, Extended the public comment period for the Service Supporting Documents. comment period,. 2011. NPRM from April 4, 2011, to May 23, 2011. RIN 2126–AB20 ...... Docket No. FMCSA– 2010–0167. Electronic On-Board Recorders and Hours-of- Notice; request for ad- 76 FR 20611, Apr. 13, Expanded the opportunity for the public to Service Supporting Documents. ditional public com- 2011. comment on the issue of ensuring that ment. EOBRs are not used to harass CMV driv- RIN 2126–AB20 ...... ers. Docket No. FMCSA– 2010–0167. Motor Carrier Safety Advisory Committee Notice of meeting ...... 76 FR 38268, June Announced series of subcommittee meetings (MCSAC) Series of Public Subcommittee Related to RIN 2126– 29, 2011. on task 11–04, concerning technical speci- Meetings. AA89. fications for an EOBR as related to the Docket No. FMCSA– April 2010 final rule. 2006–26367.

of-service data during driver/vehicle inspections Security, Interfaces, and Display of Hours-of- 12 MCSAC Task 12–01: Measures to Ensure and safety investigations. Retrieved December 7, Service Data During Driver/Vehicle Inspections and Electronic On-Board Recorders (EOBRs) Are Not 2014, from http://mcsac.fmcsa.dot.gov/documents/ Safety Investigations, December 16, 2011. Retrieved Used to Harass Commercial Motor Vehicle (CMV) _ _ July2011/task statement 11-04.pdf. December 7, 2014, from http:// Drivers, February 8, 2012. Retrieved January 8, 11 MCSAC Task 11–04: Electronic On-Board mcsac.fmcsa.dot.gov/meeting.htm. 2015, from http://mcsac.fmcsa.dot.gov/Reports.htm. Recorders (EOBR) Communications Protocols,

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TABLE 4—TIMELINE OF REGULATORY AND JUDICIAL ACTIONS SINCE THE 2010 RULE—Continued

Title Type of action, RIN Citation, date Synopsis

Owner-Operator Indep. Drivers Ass’n v. Fed. Judicial Decision, Owner-Operator Vacated the April 2010 rule. Motor Carrier Safety Admin. United States Court Indep. Drivers Ass’n of Appeals, Seventh v. Fed. Motor Car- Circuit. rier Safety Admin., Related to RIN 2126– 656 F.3d. 580 (7th Cir. AA89. 2011), No docket number ...... Aug. 26, 2011 ...... Motor Carrier Safety Advisory Committee Se- Notice of meetings re- 76 FR 62496, Oct. 7, Oct. 24–27, 2011, subcommittee review of ries of Public Subcommittee Meetings. lated to EOBRs. 2011. the functional specifications for EOBRs No RIN...... published by FMCSA as part of EOBR final Docket No. FMCSA– rule 2006–26367. MCSAC: Public Meeting Medical Review Notice of meeting ...... 77 FR 3546, Jan. 24, Announced meeting on task 12–01, con- Board: Joint Public Meeting With MCSAC. Related to RIN 2126– 2012. cerning issues relating to the prevention of AB20. harassment of truck and bus drivers Docket Nos. FMCSA– through EOBRs. 2006–26367 and FMCSA–2011–0131. Electronic On-Board Recorders and Hours-of- Notice of intent ...... 77 FR 7562, Feb. 13, Announced FMCSA’s intent to go forward Service Supporting Documents. RIN 2126–AB20 ...... 2012. with an SNPRM; two public listening ses- Docket No. FMCSA– sions; an initial engagement of the MCSAC 2010–0167. in this subject matter; a survey of drivers concerning potential for harassment; and a survey for motor carriers and vendors con- cerning potential for harassment. Electronic On-Board Recorders and Hours-of- Notice of public listen- 77 FR 12231, Feb. 29, Announced public listening session held in Service Supporting Documents. ing session,. 2012. Louisville, Kentucky on March 23, 2012. RIN 2126–AB20 ...... Docket No. FMCSA– 2010–0167. Electronic On-Board Recorders and Hours-of- Notice of public listen- 77 FR 19589, Apr. 2, Announced public listening session held in Service Supporting Documents. ing session. 2012. Bellevue, Washington on April 26, 2012. RIN 2126–AB20 ...... Docket No. FMCSA– 2010–0167. Electronic On-Board Recorders for Hours-of- Final rule ...... 77 FR 28448, May 14, Responded to a decision of the Court of Ap- Service Compliance; Removal of Final Rule RIN 2126–AB45 ...... 2012. peals for the Seventh Circuit that vacated Vacated by Court. Docket No. FMCSA– the April 2010 final rule. 2012–0006. Agency Information Collection Activities; New Notice and request for 77 FR 74267, Dec. 13, FMCSA submits an Information Collection Information Collection Request: Driver and information. 2012. Request (ICR) to Office of Management Carrier Surveys Related to Electronic On- No RIN...... and Budget (OMB) for approval. The pur- Board Recorders (EOBRs), and Potential Docket No. FMCSA– pose of this new ICR is to examine by the Harassment Deriving From EOBR Use. 2012–0309. collection of survey data, the issue of driver harassment and determine the extent to which EOBRs could be used by motor car- riers or enforcement personnel to harass drivers and/or monitor driver productivity. The survey will also collect information on the extent to which respondents believe that the use of EOBRs may result in coer- cion of drivers by motor carriers, shippers, receivers and transportation intermediaries. Agency Information Collection Activities; Ap- Notice and request for 78 FR 32001, May 28, The purpose of this new ICR is to broadly ex- proval of a New Information Collection Re- comments. 2013. amine, by the collection of survey data, the quest: Driver and Carrier Surveys Related No RIN...... issue of driver harassment and determine to Electronic Onboard Recorders (EOBRs), Docket No. FMCSA– the extent to which EOBRs used to docu- and Potential Harassment Deriving From 2012–0309. ment drivers’ HOS could be used by motor EOBR Use. carriers or enforcement personnel to har- ass drivers or monitor driver productivity. The survey will collect information on the extent to which respondents believe that the use of EOBRs may result in coercion of drivers by motor carriers, shippers, receiv- ers, and transportation intermediaries. The proposed surveys for drivers and carriers collect information related to issues of EOBR harassment of drivers by carriers. FMCSA plans to publish a supplemental notice of proposed rulemaking on EOBRs.

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TABLE 4—TIMELINE OF REGULATORY AND JUDICIAL ACTIONS SINCE THE 2010 RULE—Continued

Title Type of action, RIN Citation, date Synopsis

Electronic Logging Devices and Hours of Supplemental notice of 79 FR 17656, Mar. 28, Proposed minimum performance and design Service Supporting Documents. proposed rule- 2014. standards for HOS ELDs, mandated their making; request for use by drivers currently required to keep comments. RODS, proposed clarifying and specified RIN 2126–AB20 ...... HOS supporting document retention re- Docket No. FMCSA– quirements; and included measures to ad- 2010–0167. dress concerns about harassment resulting from the mandatory use of ELDs. Electronic Logging Devices and Hours of Evaluating the Poten- 79 FR 27040, May 12, Announced the availability of a new final re- Service Supporting Documents. tial Safety Benefits 2014. port, ‘‘Evaluating the Potential Safety Bene- of Electronic Hours- fits of Electronic Hours-of-Service Record- of-Service Record- ers.’’ The study quantitatively evaluated ers; Notice of avail- whether trucks equipped with Electronic ability of research Hours-of-Service Recorders (EHSRs) have report. a lower (or higher) crash and hours-of- RIN 2126–AB20 ...... service (HOS) violation rate than those Docket No. FMCSA– without EHSRs. 2010–0167. Coercion of Commercial Motor Vehicle Driv- NPRM ...... 79 FR 27265, May 13, FMCSA proposes regulations that prohibit ers; Prohibition. RIN 2126–AB57 ...... 2014. motor carriers, shippers, receivers, or Docket No. FMCSA– transportation intermediaries from coercing 2012–0377. drivers to operate CMVs in violation of cer- tain provisions of the FMCSRs—including HOS limits and the Commercial Driver’s Li- cense (CDL) regulations and associated drug and alcohol testing rules—or the Haz- ardous Materials Regulations. In addition, the NPRM would prohibit anyone who op- erates a CMV in interstate commerce from coercing a driver to violate the commercial regulations. Electronic Logging Devices and Hours of Supplemental notice of 79 FR 28471, May 16, Extended the public comment period for the Service Supporting Documents. proposed rule- 2014. Agency’s March 28, 2014 SNPRM until making; extension of June 26, 2014. comment period. RIN 2126–AB20 ...... Docket No. FMCSA– 2010–0167. Agency Information Collection Activities; New Notice and Request 79 FR 642848, Oct. Invited public comment on the approval of a Information Collection Request: Electronic for Comments. 28, 2014. new information collection request entitled, Logging Device Vendor Registration. No RIN ...... Electronic Logging Device Vendor Reg- Docket No.: FMCSA– istration. This ICR will enable manufactur- 2014–0377. ers of ELDs to register with FMCSA. Electronic Logging Devices and Hours of Notice of Availability of 79 FR 67541, Nov. 13, Announced the availability of a new report: Service Supporting Documents; Research Research Report. 2014. ‘‘Attitudes of Truck Drivers and Carriers on Report on Attitudes of Truck Drivers and RIN 2126–AB20 ...... the Use of Electronic Logging Devices and Carriers on the Use of Electronic Logging Docket No. FMCSA– Driver Harassment.’’ This project surveyed Devices and Driver Harassment. 2010–0167. drivers on their attitudes regarding carrier harassment and examined whether re- ported harassment experiences varied due to the hours-of service logging method used by the driver. Agency Information Collection: Activities; New Notice and Request 80 FR 18295, Apr. 3, Announced the FMCSA plan to submit the In- Information Collection Request: Electronic for Comments. 2015. formation Collection Request (ICR) de- Logging Device (ELD) Registration. No RIN ...... scribed below to the Office of Management Docket No. FMCSA– and Budget for its review, and invited pub- 2014–0377. lic comment on the approval of a new ICR entitled, Electronic Logging Device Reg- istration to enable providers to register their ELDs with FMCSA. Coercion of Commercial Motor Vehicle Driv- Final Rule ...... 80 FR 74695, Nov. 30, Prohibits motor carriers, shippers, receivers, ers; Prohibition. RIN 2126–AB57 ...... 2015. or transportation intermediaries from coerc- Docket No. FMCSA– ing drivers to operate CMVs in violation of 2012–0377. certain provisions of the FMCSRs. Pro- hibits anyone who operates a CMV in inter- state commerce from coercing a driver to violate the commercial regulations.

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V. Legal Basis for the Rulemaking vehicles’’—does ‘‘not impair their CMVs to increase compliance with HOS FMCSA’s authority for this ability to operate the vehicles safely’’ regulations. The statute, as amended, rulemaking is derived from several (49 U.S.C. 31136(a)(2)). ELDs that are required the Agency to ensure that such statutes, which are discussed below. properly designed, used, and devices were not used to ‘‘harass a maintained will enable drivers, motor vehicle operator.’’ This provision was A. Motor Carrier Act of 1935 carriers, and authorized safety officials further amended by MAP–21, providing The Motor Carrier Act of 1935 (Pub. to more effectively and accurately track that regulations requiring the use of L. 74–255, 49 Stat. 543, August 9, 1935), on-duty driving hours, thus preventing ELDs, ensure that ELDs not be used to as amended, (the 1935 Act) provides both inadvertent and deliberate HOS harass drivers. See the discussion of that, ‘‘[t]he Secretary of Transportation violations. Driver and motor carrier MAP–21, below, and the discussion of may prescribe requirements for—(1) compliance with the HOS rules helps comments related to harassment in qualifications and maximum hours of ensure that drivers are provided time to Section IX. obtain restorative rest and thus that ‘‘the service of employees of, and safety of D. Hazardous Materials Transportation physical condition of [CMV drivers] is operation and equipment of, a motor Authorization Act of 1994 carrier; and (2) qualifications and adequate to enable them to operate the vehicles safely’’ (49 U.S.C. 31136(a)(3)). Section 113 of the Hazardous maximum hours of service of employees Indeed, the Agency considered the Materials Transportation Authorization of, and standards of equipment of, a rulemaking’s impact on driver health Act of 1994 (Pub. L. 103–311, 108 Stat. motor private carrier, when needed to under 49 U.S.C. 31136(a)(3) and (a)(4), 1673, 16776–1677, August 26, 1994) promote safety of operation’’ (49 U.S.C. as discussed in the Environmental (HMTAA) requires the Secretary to 31502(b)). Among other things, by Assessment, available in the docket for prescribe regulations to improve requiring the use of ELDs, this rule this rulemaking. compliance by CMV drivers and motor requires the use of safety equipment that By ensuring ELDs are tamper- carriers with HOS requirements and the will increase compliance with the HOS resistant, this rulemaking will help efficiency of Federal and State regulations and address the ‘‘safety of protect against coercion of drivers (49 authorized safety officials reviewing operation’’ of motor carriers subject to U.S.C. 31136(a)(5)). The ELD will such compliance. Specifically, the Act this statute. This will result through the decrease the likelihood that driving addresses requirements for supporting automatic recording of driving time and time, which will be captured documents. The cost of such regulations a more accurate record of a driver’s automatically by the device, could be must be reasonable to drivers and motor work hours. concealed and that other duty status carriers. Section 113 of HMTAA B. Motor Carrier Safety Act of 1984 information entered by the driver could describes what elements must be be inappropriately changed after it is covered in regulation, including a The Motor Carrier Safety Act of 1984 entered. Thus, motor carriers will have requirement that the regulations specify (Pub. L. 98–554, Title II, 98 Stat. 2832, limited opportunity to force drivers to the ‘‘number, type, and frequency of October 30, 1984) (the 1984 Act), as violate the HOS rules without leaving supporting documents that must be amended, provides authority to the an electronic trail that would point to retained by the motor carrier’’ and a Secretary of Transportation (Secretary) the original and revised records. minimum retention period of at least 6 to regulate drivers, motor carriers, and This rule also prohibits motor carriers months. vehicle equipment. It requires the from coercing drivers to falsely certify Section 113 also requires that Secretary to prescribe minimum safety their ELD records (49 CFR 395.30(e)). regulations ‘‘authorize, on a case-by- standards for CMVs to ensure that—(1) FMCSA recently adopted a rule that case basis, self-compliance systems’’ CMVs are maintained, equipped, defines ‘‘coerce’’ or ‘‘coercion’’ and whereby a motor carrier or a group of loaded, and operated safely; (2) prohibits the coercion of drivers (49 motor carriers could propose an responsibilities imposed on CMV CFR 390.5 and 390.6, respectively) (80 alternative system that would ensure drivers do not impair their ability to FR 74695, November 30, 2015). compliance with the HOS regulations. operate the vehicles safely; (3) drivers’ Because the rule will increase The statute defines ‘‘supporting physical condition is adequate to compliance with the HOS regulations, document,’’ in part, as ‘‘any document operate the vehicles safely; (4) the which are intended to prevent driver . . . generated or received by a motor operation of CMVs does not have a fatigue, it will have a positive effect on carrier or commercial motor vehicle deleterious effect on drivers’ physical the physical condition of drivers and driver in the normal course of condition; and (5) CMV drivers are not help to ensure that CMVs are operated business . . .’’ This rule does not coerced by a motor carrier, shipper, safely (49 U.S.C. 31136(a)(1)). Other require generation of new supporting receiver, or transportation intermediary requirements in 49 U.S.C. 31136(a)(1) documents outside the normal course of to operate a CMV in violation of concerning safe motor vehicle the motor carrier’s business. It addresses regulations promulgated under 49 maintenance, equipment, and loading supporting documents that a motor U.S.C. 31136 or under chapter 51 or are not germane to this rule because carrier needs to retain consistent with chapter 313 of 49 U.S.C. (49 U.S.C. ELDs and the rulemaking’s related the statutory requirements. The 31136(a)). The 1984 Act also grants the provisions influence driver operational provisions addressing supporting Secretary broad power in carrying out safety rather than vehicular and documents are also discussed in Section motor carrier safety statutes and mechanical safety. VIII of this preamble. regulations to ‘‘prescribe recordkeeping and reporting requirements’’ and to C. Truck and Bus Safety and Regulatory E. MAP–21 ‘‘perform other acts the Secretary Reform Act Section 32301(b) of the Commercial considers appropriate’’ (49 U.S.C. Section 9104 of the Truck and Bus Motor Vehicle Safety Enhancement Act, 31133(a)(8) and (10)). Safety and Regulatory Reform Act (Pub. enacted as part of MAP–21 (Pub. L. 112– The HOS regulations are designed to L. 100–690, 102 Stat. 4181, 4529, 141, 126 Stat. 405, 786–788, July 6, ensure that driving time—one of the November 18, 1988) anticipated the 2012), mandated that the Secretary principal ‘‘responsibilities imposed on Secretary promulgating a regulation adopt regulations requiring that CMVs the operators of commercial motor about the use of monitoring devices on involved in interstate commerce,

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operated by drivers who are required to • April 13, 2011, Notice, request for A. Terminology in This Rulemaking keep RODS, be equipped with ELDs.13 additional public comment concerning 1. A Note on the Terms ‘‘EOBR,’’ ‘‘EOBR The statute sets out provisions that the harassment associated with electronic Technology,’’ and ‘‘ELD’’ as Used by regulations must address, including recording of HOS duty status Commenters device performance and design • March 28, 2014, SNPRM standards and certification To the best of the Agency’s requirements. In adopting regulations, • May 12, 2014, Notice of Availability knowledge, no devices or technologies the Agency must consider how the need concerning the Agency’s research report for HOS compliance in the marketplace for supporting documents might be evaluating the potential safety benefits to date comply fully with the vacated reduced, to the extent data is captured of ELDs § 395.16 requirements. However, the on an ELD, without diminishing HOS • November 13, 2014, Notice of characteristics of many systems and devices probably came very close to enforcement. Availability concerning the Agency’s meeting those requirements, and may The statute also addresses privacy research report about harassment and its have been able to become fully protection and use of data. Section relationship to ELDs 32301(b) of MAP–21 requires the compliant with some relatively minor regulations to ‘‘ensur[e] that an The docket also includes transcripts technological changes. Despite this, electronic logging device is not used to of comments received at two public many commenters referred to ‘‘existing harass a vehicle operator.’’ Among other listening sessions held in Louisville, EOBRs,’’ and referenced specific makes protections, the rule protects drivers Kentucky on March 23, 2012, and and models of EOBR-like (ELD-like) from being harassed by motor carriers Bellevue, Washington on April 26, devices and systems. FMCSA does not that are using information available 2012.14 refer to devices or systems discussed by through an ELD, resulting in a violation In the 2014 SNPRM, the Agency commenters by brand name in this rule. of § 392.3 or part 395 of 49 CFR, and stated that the proposed regulatory text In these responses to comments, the Agency considers the term ‘‘EOBR’’ or minimizes the likelihood of should be read to replace that proposed ‘‘electronic on-board recorder’’ to mean interruptions during a driver’s sleeper in the 2011 NPRM. Some issues in the a device or a technology that would berth period. In doing so, this rule also NPRM were addressed at the SNPRM cover both HOS data recording and furthers the provisions of 49 U.S.C. stage. FMCSA discusses comments to 31136(a), protecting a driver’s health. storage systems, but acknowledges that Finally, as noted above, MAP–21 the 2011 NPRM that remain relevant to the devices commented upon might not amended the 1984 Act to add new 49 this rulemaking in the appropriate actually be compliant with the technical U.S.C. 31136(a)(5), requiring that sections of this comment summary. specifications of today’s rule. FMCSA regulations address coercion of However, the Agency generally does not MAP–21 defines ‘‘electronic logging drivers. Although there may be address comments to the 2011 NPRM device’’ or ‘‘ELD’’ as a device that ‘‘is instances where claims of coercion and that have been rendered obsolete by capable of recording a driver’s hours of harassment might overlap, in enacting changes in the Agency’s proposal and service and duty status accurately and MAP–21, Congress addressed the issues events subsequent to the 2011 NPRM, automatically; and meets the separately and each regulatory violation such as the enactment of MAP–21, or requirements established by the has distinct elements. A motor carrier that were also submitted to the SNPRM. Secretary through regulation.’’ 49 U.S.C. can only be found to have committed Obsolete provisions are discussed in 31137(f)(1). The Agency previously used harassment if the driver commits a Section IV, Overview, above. Similarly, the term ‘‘electronic on-board recorder’’ specified underlying violation based on we do not generally respond to to refer to this category of HOS the carrier’s actions and there is a nexus comments related to cost and benefit recording device and its support system. to the ELD. Adverse action against the assumptions that the Agency relied on However, to achieve consistency with driver is not required because the driver in the NPRM because the SNPRM and MAP–21, the Agency now refers to complied with the carrier’s instructions. this rule largely rely on different data devices that meet today’s final rule’s In contrast, coercion is much broader in and methodologies. technical specifications as ‘‘ELDs.’’ terms of entities covered and addresses At the NPRM stage, FMCSA and the FMCSA may retain the use of the term the threat to withhold work from or take Department of Transportation (DOT) ‘‘EOBR,’’ as appropriate, in the context adverse employment action against a participated in a pilot program intended of comments. Technically there are only ‘‘ELD-like’’ driver in order to induce the driver to to increase effective public involvement devices in use today, as an ELD did not violate a broader range of regulatory in this rulemaking by using the Cornell exist in regulation before today’s rule. provisions or to take adverse action to eRulemaking Initiative, called The Agency assumes that many ELD- punish a driver for the driver’s refusal ‘‘Regulation Room.’’ Regulation Room is like devices could be made compliant to operate a CMV is violation of the not an official DOT Web site; therefore, specified regulations. with the ELD rule at relatively low-cost, a summary of discussions introduced in but existing devices would likely need VI. Discussion of Comments—Overview Regulation Room was prepared some modification. In today’s rule, FMCSA responds to collaboratively on the site and 2. Fleet Management Systems comments in public docket FMCSA– submitted to DOT as a public comment 2010–0167, which includes comments to the docket. Regulation Room An FMS may include the functions of submitted in response to the following commenters were informed that they an ELD, but typically provides Federal Register notices: could also submit individual comments communication capabilities that go • February 1, 2011, NPRM to the rulemaking docket. beyond the defined requirements of today’s rule. Commenters often use the 13 In the March 28, 2014 SNPRM, the term 14 Transcripts of both sessions are available in the term ‘‘ELD’’ to refer to what appears to ‘‘electronic logging device (ELD)’’ was substituted docket for this rulemaking, and the Web casts are be an FMS. FMCSA may retain the for the term ‘‘electronic on-board recorder (EOBR),’’ archived and available at http:// language of the comments, despite the which was used in the April 2010 final rule and www.tvworldwide.com/events/dot/120323/ and February 2011 NPRM, in order to be consistent with http://www.tvworldwide.com/events/dot/120426/, fact that the technologies described the term used in MAP–21. respectively (last accessed May 30, 2013). exceed the minimum specifications and

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definition to be considered an ELD. The Agency heard from drivers or other archived at: http:// Today’s rule prescribes technical individuals, including owner-operators, www.tvworldwide.com/events/dot/ specifications required for a minimally and motor carriers. Six associations also 120323/ and http:// compliant ELD; however, it also opposed all or certain elements of the www.tvworldwide.com/events/dot/ addresses communication features proposed rule: OOIDA; the Agricultural 120426/, respectively. The comments available as part of FMS as part of its Retailers Association; the Joint Poultry made at these listening sessions are effort to prevent harassment. Today’s Industry Safety and Health Council; incorporated into the comments rule does not prohibit certain enhanced and, in a joint filing, the Air and addressed here. capabilities that some ELD providers Expedited Motor Carriers Association, 2. Comments to the 2014 SNPRM may choose to create, and some motor National Association of Small Trucking carriers may elect to employ, consistent Companies, and The Expedite FMCSA received 1,750 unique and with 49 CFR 390.17. Association of North America. germane comments to the SNPRM. Reasons cited by commenters who 3. ELD Records Comments Generally in Support of the opposed the proposed rule included the SNPRM In today’s rule, FMCSA uses the term following: ‘‘ELD records’’ reflecting the move from • The proposal would not improve More than 200 commenters expressed paper logs to electronic records compliance with the HOS rules general support for the SNPRM. In recorded on an ELD. The term ‘‘ELD • The proposal would not improve addition, the Agency received a records’’ includes all the data elements highway safety submission from the Karth family that must be recorded by an ELD under • The proposal would impose providing a copy of ‘‘The AnnaLeah & the technical specifications in the excessive costs, particularly on small Mary Karth Petition: STAND UP FOR Appendix to subpart B of part 395. The businesses TRUCK SAFETY,’’ which had 11,389 • term does not include information that The proposed mandated use of electronic signatures as of May 27, 2014, EOBRs would be an invasion of privacy when it was submitted to the docket. an ELD is not required to record such • as supporting documents, including The proposal did not adequately Some of the commenters who expressed communication records recorded address protection of drivers from general support had additional through an FMS. The term is used to harassment comments or reservations that FMCSA discusses in the relevant sections describe a type of RODS that are Comments During Listening Sessions recorded on an ELD and that must be elsewhere in this comment summary. A FMCSA sought public involvement in retained by a motor carrier. A definition number of motor carriers, providers of the rulemaking through two public of ‘‘ELD record’’ is added to 49 CFR FMSs and related technologies, trade listening sessions. These sessions 395.2 for clarity. associations, and labor unions stated occurred at the Mid-America Truck their general support for the goals of the B. An Overview of Comments Show in Louisville, Kentucky, on March rulemaking. Safety advocacy 23, 2012, and at the CVSA Conference 1. Comments to the 2011 NPRM organizations generally supported a in Bellevue, Washington, on April 26, requirement for ELDs. The Truck Safety The Agency received 385 unique and 2012. The listening sessions were held Coalition, Parents Against Tired germane comments to the NPRM. The after the EOBR 1 rule was vacated and Truckers, and Citizens for Reliable and Agency received 66 docket submissions after the 2011 NPRM was published. Safe Highways, responding together, that were generally in favor of the 2011 Comments received at these public noted some concerns, but indicated proposal to expand the use of EOBRs; sessions focused primarily on the topic their organizations and the safety commenters included industry and of harassment. community support the rulemaking. safety advocacy groups, as well as During the course of these two public The California Highway Patrol (CHP) individuals, motor carriers, and listening sessions, FMCSA heard from supported FMCSA’s efforts to document government entities. The six safety both commenters present and those driver HOS and duty status via ELDs. advocacy groups that generally participating through the Internet, who The NTSB supported expanding the supported the 2011 NPRM included offered varied opinions on the number of motor carriers and drivers Road Safe America; the Insurance implementation and use of EOBRs. required to use ELDs and indicated that Institute for Highway Safety; the Commenters at the listening session in it is vitally important that FMCSA Alliance for Driver Safety and Security; Louisville, Kentucky, included OOIDA expeditiously issue a final rule to and, in a joint filing, the Truck Safety officials, drivers, representatives of increase compliance with HOS Coalition, Parents Against Tired motor carriers, and owner-operators. regulations and prevent future crashes, Truckers, and the Citizens for Reliable The second public listening session in injuries, and deaths. and Safe Highways. The National Bellevue, Washington, specifically Individual commenters wrote that Transportation Safety Board (NTSB) and sought the input of FMCSA’s Motor they supported ELDs because they make the Commercial Vehicle Safety Alliance Carrier Safety Assistance Program keeping logs easier, there is less (CVSA) wrote supportive comments, as (MCSAP) agencies because of their role paperwork, and logs are orderly, clear, did the Truckload Carriers Association, in enforcing the HOS rules and and accurate. Some commenters wrote the Arkansas Trucking Association, and familiarity with EOBR devices and other that ELDs make both drivers and motor the American Trucking Associations technical issues. Participants in the carriers operate legally and hold both (ATA). Several individuals and drivers, Bellevue public listening session accountable for compliance. motor carriers, and owner-operators also included drivers, representatives of Commenters also noted that ELDs will supported the rule. transportation-related businesses, speed up roadside inspections and FMCSA received 232 separate representatives of motor carrier industry simplify enforcement. comments to the docket that were organizations, authorized safety generally opposed to the proposed rule, officials, and Agency representatives. Comments Generally Opposed to the particularly concerning the expansion of In addition to the transcripts of the SNPRM the EOBR usage requirements. Some sessions, which are available in the FMCSA received 1,357 comments that commenters responded several times. docket to this rulemaking, Web casts are expressed general opposition to the

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SNPRM. FMCSA describes many of carriers economic advantages, and some compliance with HOS limits and these comments in more detail in other accused FMCSA of requiring ELDs in associated safety benefits. While some parts of the response to comments, but order to eliminate small carriers. Many links cannot be directly measured (e.g., the most commonly cited reasons are commenters wrote that one of the costs whether compliance with HOS discussed below. of ELDs would be a driver shortage, and regulations will actually reduce driver Unless laws are written to protect many wrote that they would leave the fatigue), the extent to which the drivers and carriers, Freightlines of driving industry if ELDs were required. predicted safety benefits of the ELD America, Inc. commented that brokers, Many commenters wrote that the ELD mandate are accurate should be shippers, receivers, corporations, and would not improve safety, security, or measurable with data from roadside customers will use ELDs and the HOS compliance. Commenters complained inspections and accident reports. George rules to deduct pay or not pay at all for that carriers with ELDs have a Washington University recommended a load, jeopardizing safety and lives. disproportionate number of crashes and that FMCSA explicitly commit to The U.S. Poultry & Egg Association, high Safety Management System measuring the actual results of the National Chicken Council, and National scores—more than carriers without regulation on an annual basis. Turkey Federation, responding together, ELDs. They provided examples of the An individual commenter stated that did not believe that motor carriers that Safety Management System scores of a independent research not related to the successfully monitor HOS with paper number of major carriers (Schneider, government will provide detailed logs should be required to incur the National, J. B. Hunt, Swift, U.S. Xpress, information about, and answers to, the expense of electronic recorders. The Knight). Commenters believed that a e-log problem. The commenter pointed National Propane Gas Association June 2014 CMV crash involving a to crashes involving all companies, large (NPGA), Klapec Trucking Company Walmart truck on the New Jersey and small, and stated that the Agency (Klapec), and the Pennsylvania Propane Turnpike was equipped with an did not completely research all factors Gas Association believed installation of AOBRD. They argued that the incident in detail. ELDs should be on a voluntary basis is proof that ELDs do not prevent 3. FMCSA Response only. The California Construction crashes. Commenters said that the ELD Trucking Association believed that does not enhance compliance—ELDs FMCSA describes and responds to motor carrier management and owner- can only prove driving time, not ODND, many of these comments in more detail operators should be free to choose how off duty, or sleeper berth time—and in other parts of the response to to implement safety management each duty status can be falsely entered. comments. However, FMCSA agrees practices suited to their particular One commenter wrote that the Agency with commenters who believe ELDs will operations. would have no additional manpower to help to reduce fatigue and fatigue- Numerous commenters objected to the enforce the ELD rules. Many related crashes. rule, indicating that the government is commenters reported that authorized The use of ELDs will make it easier overreaching, that there is too much safety officials often fail to inspect for drivers to accurately capture their regulation, and that the ELD impinges trucks with AOBRDs. duty status and make it more difficult on privacy and freedom. Some believed Many commenters opposed ELDs for individuals who currently do not that FMCSA would require ELDs for because they would enforce the existing routinely achieve high levels of reasons that have nothing to do with HOS rules and eliminate existing compliance with the HOS rules to safety, for example, to make money from ‘‘flexibility.’’ They believed that ELDs produce inaccurate records. The ELD carriers and drivers. OOIDA believed would contribute to stress, bad diet, and will provide increased transparency and that the use of ELDs would have wide- ill health when used to enforce the 14- a record that is created automatically of ranging and negative implications for hour rule. They alleged that trucks with some data elements, as well as a record the health, privacy, safety, and ELDs speed through construction zones, of any human authorship and editing. economic interests of all U.S.-domiciled parking lots, and fueling stations. While commenters pointed out that truck drivers and motor carriers. Commenters also believed that the use there can still be falsification of time Many commenters wrote that ELDs of ELDs would result in congested spent ODND, FMCSA believes that the would be a financial burden, traffic and a scarcity of truck parking opportunities for such fraud are particularly for small motor carriers, locations by forcing strict compliance drastically reduced when vehicles are and would drive small carriers out of with the HOS rules. equipped with ELDs. Automatic business. The Agricultural Retailers Commenters stated that the ELD recording of all times when the CMV is Association and NPGA believed an ELD would contribute to driver harassment moving and regular recording of mandate is an unnecessary expense— because ELDs enable motor carriers to geolocation data and other data with little to no safety benefits. Some push drivers to their driving and on- elements will help both employers and wrote that ELDs would cause prices to duty time limits. authorized safety officials with HOS rise and slow the economy. Some Many commenters wrote that oversight, as those elements cannot be commenters objected to the costs of the training—not ELDs—will provide safety, easily manipulated. FMCSA believes ELD being the responsibility of the and FMCSA should pursue long that ELD use will lead to increased driver or motor carrier; some suggested overdue driver training programs. compliance and beneficial behavior that FMCSA should pay for ELDs. Commenters maintained that big changes in commercial driving. Commenters wrote that they would have carriers need ELDs because they hire FMCSA notes that preventing fatigued to keep paper logs as well, in case the undertrained drivers. operation of CMVs is a complex ELD failed. challenge and achieving increased Commenters also stated that ELDs More Data Needs To Be Collected and compliance with the HOS rules is only would benefit only large carriers, or Analyzed one component of the problem. This provide more benefits for large carriers The George Washington University rule addresses the role of HOS non- than small carriers. These commenters Regulatory Studies Center pointed out compliance while the Agency’s work believed big corporations would get that FMCSA conducts regular roadside with government and industry leaders discounts on ELDs. Commenters inspections that should produce data by in launching the North American believed that ELDs would give big which the Agency can measure Fatigue Management Program (http://

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www.nafmp.com/en/) is intended to consider expanding the rule to include Comments on Option 1: ELDs address other components related to a broader scope, or a ‘‘true universal’’ mandated for all CMV operations overall work-rest schedules, and mandate for ELD use. Many other subject to 49 CFR part 395. An owner- balancing family and work life in a commenters supported the Agency’s operator, a driver, and two individuals manner that enables the driver to rest proposal for all current RODS users to stated that the rule should cover all during off-duty periods. be required to use ELDs. commercial truck drivers, with no With regard to comments about exceptions. An individual commenter flexibility, today’s final rule concerns 2. Comments to the 2014 SNPRM specifically included the 100/150 air ELDs and supporting documents and In the SNPRM, FMCSA proposed to mile carriers—which the commenter does not involve any changes to the mandate the installation and use of asserted were most problematic. Klapec underlying HOS requirements or the ELDs for the majority of interstate motor opposed Option 1 and stated that, as a various duty status options available carrier operations. Drivers engaged in company with an excellent safety under the HOS rules. Therefore, the use operations that do not require the record, it is being subjected to of ELDs does not preclude any of the preparation of RODS would be able to punishment for the actions of a small flexibility provided under the HOS use ELDs to document their compliance percentage of the industry that routinely rules, such as the use of the CMV for with the HOS rules, but FMCSA would violate the HOS rules. The company personal conveyance. not require them to do so. Drivers believes ELDs should be mandated only And in response to the comments currently allowed to use timecards for the chronic violators of the HOS from George Washington University, could continue to do so under the rules. FMCSA will conduct a regulatory provisions of 49 CFR 395.1(e). Drivers Comments on Option 2: ELDs effectiveness study at an appropriate who need to use RODS infrequently or mandated for all CMV operations where time following the compliance date. The intermittently would also be allowed to the driver is required to complete RODS Agency will then be in a position to continue using paper RODS, provided under 49 CFR 395.8. The majority of compare HOS violation rates in the they do not need to use RODS more commenters supported Option 2. The years prior to the ELD mandate and than 8 days in any 30-day period. International Brotherhood of Teamsters during the years that follow The 2014 SNPRM evaluated four (IBT) stated that safety benefits are implementation of the ELD mandate. options for this proposed ELD mandate: higher when all regulated CMV FMCSA addresses the relationship of • Option 1: ELDs are mandated for all operations are included in the ELD ELDs and crashes in the discussion of CMV operations subject to 49 CFR part mandate, but supported Option 2. The its research. FMCSA discusses the 395. International Foodservice Distributors benefits of ELD use elsewhere in this • Option 2: ELDs are mandated for all Association (IFDA) noted its support for preamble. CMV operations where the driver is the Agency’s proposed exclusion from VII. Discussion of Comments Related to required to complete RODS under 49 the ELD mandate of drivers who are not currently, or are only occasionally, Scope and Exceptions to the Mandate CFR 395.8. • subject to RODS requirements. A. Scope Option 3: ELDs are mandated for all The National Limousine Association CMV operations subject to 49 CFR part (NLA) stated that Option 2 is the most 1. Comments to the 2011 NPRM 395, and the ELD is required to include sensible option and that it squarely The April 2010 rule mandated the use or be able to be connected to a printer meets the Congressional mandate under of EOBRs for motor carriers that and print RODS. • MAP–21. If the short-haul exemption demonstrated a history of severe Option 4: ELDs are mandated for all were eliminated, NLA noted there noncompliance with the HOS CMV operations where the driver is would be severe negative economic regulations. Although many required to complete RODS under 49 impacts on NLA’s members, most of commenters, including the NTSB, had CFR 395.8, and the ELD is required to whom are small businesses. NLA also concerns that this limited mandate include or be able to be connected to a stated short-haul carriers have a strong would not adequately address safety printer and print RODS. record of safety and HOS compliance, issues, the Agency could not include in Option 2 is FMCSA’s preferred option and that the focus must be on long-haul the 2010 rule requirements that for the mandated use of ELDs. FMCSA operators, where the fatigue-related extended beyond the scope of the adopts this option in today’s rule. safety concerns exist. January 18, 2007 NPRM (72 FR 2340). General comments. An individual Comments on Options 3 and 4: ELDs At that time, the Agency estimated that noted that the ELD mandate would put must include, or be connected to, a the remedial directive aspect of 2010 a cost burden on the occasional printer. Options 3 and 4 are essentially rule would have been applicable to interstate driver (e.g., 10–20 times per the same as Options 1 and 2, but would about 2,800 motor carriers in the first year). An individual stated an objection also require those ELDs to include, or to year and 5,700 motor carriers each year to the ELD mandate on the basis that the be able to be connected to a printer. thereafter. government does not have the right to Support Printer Requirement. Only In the February 2011 NPRM, FMCSA require private individuals to install one commenter supported the printer proposed mandatory installation and something in their private property. requirement. An ELD provider noted use of EOBRs in all CMVs for which the Because service technicians are not that Options 1 and 2 lack a practical use of RODS was required (76 FR 5537). subject to Federal and State HOS interface for carrying out manual The provisions of 49 CFR 395.1(e)(1) restrictions, and they operate several inspections at roadside inspections and (2) would still allow short-haul vehicles owned or leased by different stations and that electronic data drivers to continue using the timecard carriers on a daily basis, the American transfers are often not possible. The ELD provision to record HOS. Although Truck Dealers (ATD) division of the provider recommended that FMCSA FMCSA would not have required short National Automobile Dealers require ELDs to have a printer or the haul drivers to install and use EOBRs, Association stated that it does not make ability to connect to a printer. nothing in the NPRM precluded them sense to subject them to the RODS Oppose Printer Requirement. Several from doing so. Several commenters to requirements or to the proposed ELD commenters, including the Agricultural the NPRM suggested that the Agency and supporting documents rules. Retailers Association, the NLA, and

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several individuals, opposed the printer parameters of those provisions (for annual trips and that carriers that do not requirement due to the expense of example, by operating outside the exceed the time or distance limits on maintaining and operating printers. specified 100- or 150-air-mile radii). more than 10 percent of their trips be Under the 2011 NPRM, if a driver exempt from EOBR use. 3. FMCSA Response operated a CMV more than 2 of every 7 FirstGroup requested that FMCSA FMCSA agrees with the comments to days using RODS (outside the retain the current exemption for the NPRM supporting the exception for parameters of the timecard exemption), intrastate school bus operations and short haul operations under § 395.1(e) the driver would be required to use an consider allowing the drivers to use because this approach presents the most EOBR. This effectively set a threshold RODS on the few occasions (less than 1 cost effective approach for mandating for EOBR usage. The NPRM specifically percent of all field trips) when they ELD usage among a large percentage of asked for comments and suggestions on would operate beyond a 100-air-mile CMVs operating on the Nation’s this topic, as the Agency wanted to radius. highways. Based on comments to both know if a more appropriate alternative Schneider National, Inc. (Schneider) the 2011 NPRM and the 2014 SNPRM, threshold exists. questioned the ability of short-haul as well as the economic factors None of the commenters responding carriers to make day-to-day judgments presented in the RIA for this to the SNPRM favored the proposal as concerning EOBR use. Schneider also rulemaking, FMCSA requires ELDs for written. However, several commenters asked FMCSA to clarify the assessment CMV operations where the driver is offered alternatives for FMCSA’s periods (for example, do ‘‘week’’ and required to complete RODS under 49 consideration. ATA agreed with the ‘‘month’’ refer to calendar weeks and CFR 395.8, subject to limited exceptions proposed weekly period but months, or rolling periods?) and the addressed below. recommended setting the threshold at Agency’s expectations concerning when The Agency continues to believe that three or more trips. The United Parcel HOS would need to be recorded using this is the best and most cost-effective Service (UPS) recommended that an EOBR. option and that it meets the FMCSA consider a longer period—at NLA believed that FMCSA did not requirements of MAP–21. FMCSA’s least a month and at least 5 instances of have sufficient data to justify applying analysis did not find a compelling safety exceeding time or distance limits within an EOBR mandate to short-haul motor or cost-benefit argument to include that month—to give carriers the carriers, particularly those carriers that those drivers engaged in ‘‘short haul’’ opportunity to determine if deviations operate smaller capacity passenger operations given that these drivers work from the short-haul provisions were due vehicles. within a limited distance of the work- to unplanned but unavoidable situations Individual commenters expressed reporting location and generally are or from recurring situations. If EOBR different concerns about the short-haul released from duty within 12 hours from use ultimately would be required for provisions and EOBR use. One the beginning of the work day. Because specific operations, UPS also suggested commenter believed long-haul motor these drivers currently rely upon time that FMCSA mandate EOBRs only for a carriers might change to relay records rather than RODS and operate specified period of time and consider operations to take advantage of the limited distances within strict daily restoring the timecard exemption if no short-haul provisions. Another focused limits, FMCSA believes there is less further time or distance limit deviations on seasonal operations where a driver is cause for concern about fatigue than is occur. required to use RODS only for 10–15 the case with the population of drivers FedEx Corp (FedEx) raised concerns days per year. This commenter that must prepare RODS. about the potential complexity of an recommended FMCSA consider setting In response to commenters that ‘‘occasional use’’ provision. FedEx a yearly threshold for RODS use based believe the ELD mandate should be noted that there are two different on annual distance traveled or number imposed only on drivers required to operational situations where a driver, of days a CMV driver operates outside hold a CDL, the Agency notes that who usually uses a timecard, would be the short-haul limits. required to use RODS because the driver Congress linked the ELD requirement to 2. Comments to the 2014 SNPRM had exceeded the time or distance the HOS requirements such that any In response to the comments to the person who operates a CMV, as defined thresholds: When the driver is aware of this prior to commencing a trip or when NPRM, FMCSA proposed a new in 49 CFR 390.5, and is subject to the the driver discovers this during the trip. threshold for ELD use in Federal HOS requirements for RODS is For this reason and to facilitate § 395.8(a)(1)(iii) of the SNPRM. FMCSA subject to the mandate. Therefore, compliance assurance in roadside proposed that a motor carrier could today’s rule is applicable to CMV settings, FedEx recommended that allow a driver who needed to complete drivers required to keep RODS, FMCSA adopt a ‘‘bright-line’’ rule that RODS not more than 8 days within any regardless of whether they require a would require EOBR use if the driver rolling 30-day period to record the CDL. knew at the start of the trip that a RODS driver’s duty status manually, on a In response to commenters’ concerns would be required. graph grid. FMCSA would not require regarding printer-related expenses, the The Utility Line Clearance Coalition these drivers to use an ELD. This rule includes a display option as an recommended that FMCSA base the proposed exception was intended to alternative to a printer as a backup to threshold for EOBR use on the number provide relief for drivers who only electronic data transfer. of trips in a month a driver operates intermittently needed to use RODS, for B. Exceptions to the Requirement To outside the timecard provisions. The example, drivers in short-haul Use ELDs—the 8 in 30-Day Threshold National School Transportation operations who usually use time cards Association believed that a threshold or occasional CMV drivers. 1. Comments to the 2011 NPRM premised on trips made during a given Many commenters supported the In the 2011 NPRM, the Agency week does not properly account for the proposed exception for drivers who acknowledged that drivers working for seasonal nature of some school infrequently need to use RODS, motor carriers that keep timecards transportation activities. The including the California Highway Patrol, under 49 CFR 395.1(e)(1) and (2) may Association suggested that FMCSA the National Private Truck Council, the occasionally operate beyond the consider a threshold based on total National School Transportation

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Association, the Snack Food drivers using RODS for 2 days or fewer use of EOBRs in all CMVs for which the Association, and the IBT. Other out of 7 could continue to use paper. use of RODS is currently required (76 commenters proposed alternate bases Overwhelmingly, commenters rejected FR 5537). While the NPRM would have for the exception. this threshold. Therefore, for a number allowed short-haul drivers to continue Some commenters believed that the of practical and enforcement reasons, to use timecards, it did not provide for proposed exception was too restrictive FMCSA proposed in the SNPRM—and any other exceptions other than the 2 in to accommodate all those drivers who retains in today’s rule—an 8 in 30-day 7-day exception. Commenters asked might need it. A commenter suggested threshold for ELD use. The fact that FMCSA to consider an exception to a threshold of 15 days in a 30-day Congress vested in the Agency allow driveaway-towaway operators and period before an ELD is required, while responsibility for mandating ELD-use by CMV dealerships to use paper RODs in another commenter said that the 8-day regulation, rather than requiring use of the vehicles they deliver to their limit did not consider circumstances ELDs by statute, negates the suggestion customers. like weather. The National Ready Mixed that the Agency lacks any discretion to In a driveaway-towaway operation, a Concrete Association opposed the prescribe the parameters of the driver transports an empty or unladen proposed exception, saying that the regulation. Nevertheless, the Agency has motor vehicle, with one or more sets of ‘‘provision, as written, is unachievable exercised that discretion narrowly, wheels on the ground, either by driving in the ready mixed concrete industry.’’ providing only three exceptions. Drivers it or by using a saddle-mount or tow- It called the 8 days in 30-days exception who need to use RODS infrequently or bar. The driver moves the vehicle ‘‘shear overreach and outside the scope intermittently, even if they are not between a manufacturer and a dealer or of what statutorily should be in the operating under the short-haul purchaser, or between someone selling proposal,’’ because it is not required by exception in § 395.1(e), may continue to or leasing the vehicle and the purchaser MAP–21. The Association wrote that use paper RODS provided they are not or lessee. The driver may take the FMCSA has a duty and is compelled not required to use RODS more than 8 days vehicle to a terminal or repair facility. to include such a provision, which they in any 30 day period. Typically, the driver drops the vehicle characterized as ‘‘non-mandated, The Agency considered a number of off and either returns home or picks up unnecessary, and unfounded.’’ factors in selecting the 8/30 day another job. A motor carrier that The National Motor Freight Traffic threshold. While the 8/30 day threshold specializes in these driveaway-towaway Association (NMFTA) also objected to preserves nearly the same ratio as the operations often employs the driver(s). the 8 days in 30-days exception, writing proposed 2/7 threshold, it will provide Dealerships have some of the same that the proposed rule effectively drivers and motor carriers with more issues as driveaway-towaway operations requires motor carriers to equip trucks flexibility. In addition, the 8-day period when delivering vehicles to their with ELDs if there is any possibility is the standard time frame for current customers. The vehicle driven may or their drivers may surpass the 8-day HOS recordkeeping requirements. may not be part of the delivery. threshold. NMFTA asked how a driver Currently drivers are required to keep While the NPRM did not specifically who may or may not exceed the 8-day the previous 7 days’ records and the address older vehicles, FMCSA also threshold and who may have used present day’s records. Allowing a driver received comments on using an EOBR different pieces of equipment will be 8 days out of 30 days as the threshold with an older engine. Driveaway-towaway operations. expected to provide a recap of the last to use paper RODS before requiring ELD Several commenters stated that they 7 days of HOS compliance data to use keeps this time frame consistent. deliver CMVs of many different makes roadside inspectors. NMFTA also The 8/30 day threshold will also and models, and that EOBR installation questioned what the motor carrier’s accommodate some seasonal concerns. exact responsibilities will be to would be a particular burden for them. The Agency believes that expanding the Other commenters pointed out that the assemble, monitor, and retain ELD 8/30 day threshold to 15/30 days, as records and other driver records across FMCSRs already contain exceptions and suggested by some commenters, is special provisions for driveaway- several pieces of equipment? inappropriate. That level of exception The American Pyrotechnics towaway operations (e.g., §§ 390.21(f); would significantly decrease the 393.42(b)(2); 393.43(f); 393.48(c)(2); Association believed that the 8 in 30- effectiveness of the ELD mandate. day exception was too restrictive and 393.95(a)(6); and 396.15). Because Similarly, extending the 30-day period EOBRs are generally an aftermarket would not apply to its drivers because would limit the ability of the Agency to they do not return to the work-reporting device, several commenters, including monitor compliance during reviews. the Engine Manufacturers Association/ location within 12 hours. The California The Agency acknowledges that any Construction Trucking Association said Truck Manufacturers Association, stated exception to the ELD mandate creates that the temporary installation and the exception should also apply to challenges for roadside enforcement. the intrastate operations using paper RODS subsequent removal of an EOBR would Agency does not believe that the short represent a significant expense for a to comply with a State regulation. haul exception from ELD use will Some commenters, including the one-time use. The Engine present different challenges from the Continental Corporation (Continental), Manufacturing Association, Rush current challenges authorized safety believed the 8 in 30-day exception Enterprises, Inc. (Rush) and ATC officials face in monitoring the short- would be difficult or impossible to Transportation, LLC (ATC) were also haul exceptions in 49 CFR 395.1 (e)(1) enforce at roadside. CVSA wrote that concerned that the process of installing and (2). roadside enforcement would not be able and removing a temporary EOBR might to determine whether the driver had C. Requests for Exemption for damage the new vehicle or the EOBR exceeded the short-haul exception and Driveaway-Towaway Operations, and cause delivery delays. A few by how much. Dealers, and Pre-Model Year 2000 commenters noted that small portable or Vehicles hand-held units were either not 3. FMCSA Response available or the commenters did not In the 2011 NPRM, FMCSA proposed 1. Comments to the 2011 NPRM have information about them. Others that drivers using RODS more than 2 out In the February 2011 NPRM, FMCSA noted that training costs and technical of 7 days would have to use an ELD, and proposed mandatory installation and requirements would make using

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manufacturer-installed EOBRs (representing Bennett DriveAway, D&T employee CDL holders. New or used impractical, were they to be available. Transport, EagleOne Oilfield sales department staff may pick-up or Rush, Driveaway-Towaway Carriers (a Transportation, Hoosier Transit, Mamo drop-off CMVs at factories, ports, group of four individual carriers), and Transportation, Norton Transport, and customers, auctions, other dealerships, ATC each provided detailed projections PARS), asked that the ELD rulemaking etc. of the cost impact on their operations. provide an exception for driveaway- ATD recognized that some parts Dealerships. One commenter towaway operations because of the drivers may be covered by the addressed the use of EOBRs on CMVs unique nature of the operations. The exceptions in 49 CFR 395.1(c) and (e). being transported from dealerships. This commenters described the unique To the extent that they fail to fall within commenter suggested that a portable circumstances of a driveaway-towaway an existing exception, ATD urged unit could be plugged into the 9-pin operation that make the installation and FMCSA to provide that such CDL connector under the dash and could be use of ELDs impractical and excessively holders need not use ELDs to meet used in these operations. burdensome: RODS requirements if the vehicles being Vehicles manufactured before model- • A driveaway-towaway operator is operated are not titled to or leased by a year 2000. Two commenters stated that not allowed to alter, attach, or dealership employer. ATD also many older CMVs in use have disassemble any portion of the CMV maintained it would be very mechanically-controlled engines and being transported. It must be delivered burdensome for small business truck may not accommodate EOBRs (i.e., there in the same condition as when it was dealerships to have to set ELD systems is no ECM). In contrast, another presented for delivery. and install ELD units in vehicles to commenter advised that two state-of- • The driveaway-towaway operator which they do not take title. the-practice EOBR-class models can be does not own the CMV or rent or lease Vehicles manufactured before model attached to a truck that is not equipped the CMV, but it is financially liable for year 2000. Eight commenters responded with an ECM by use of a sensor attached any re-assembly or repairs to a CMV to FMCSA’s request for comments on to the transmission, drive shaft, or axle, damaged or changed in transit. the complexity of compliance with a depending on the truck. Verigo Inc. • The driveaway-towaway operator CMV manufactured on or before 2000. (Verigo) recommended that FMCSA operates the CMV only once, delivering The California Construction Trucking permit a driver to use untethered means it to the dealer/purchaser. Association said that while it is possible (i.e., an ELD that achieves integral • The driveaway-towaway operator to retrofit an older truck, its research synchronization through wireless transports every type of CMV and other indicates that it is costly, at about communication with the CMV) to record drive/towaway cargo for many different $1,000 per truck in California. In on-duty time and off-duty time and manufacturers of recreational, contrast, Continental stated that it carry out other recordkeeping tasks commercial, or specialized motor would cost between $100 and $300 per while away from the vehicle. vehicles. The driver transports both new vehicle. XRS Corporation (XRS) stated and used CMVs of every variety; the that the Global Positioning System 2. Comments to the 2014 SNPRM vehicle being transported may not have (GPS) solutions and related cost for Comments to the 2011 NPRM raised an ECM. black boxes could result in an the issue of exemptions addressing Henkels & McCoy Inc. and Driveaway- incremental cost of $250 per vehicle. specific sectors of the industry or Towaway Carriers noted the lack of PeopleNet stated that obtaining speed specific types of CMVs. Given the 8 in information on existing portable ELDs. from a source other than the ECM or 30 days threshold for drivers The Driveaway-Towaway Coalition GPS will be very complex and cost- infrequently required to keep RODS, reported that many vehicles are not prohibitive. Both PeopleNet and Zonar FMCSA stated in the SNPRM that it was portable-ELD compatible. Systems (Zonar) supported using GPS- not proposing any additional exceptions ATC noted that a driver will have to based ELDs for older CMVs. [79 FR 17672, March 28, 2014]. carry the equipment to connect to each The Truck and Engine Manufacturers However, drivers and carriers in type of CMV the driver might encounter. Association generally supported the driveaway-towaway operations and ATC maintained that the costs for proposed rule. It raised questions about those who use CMVs manufactured training, extra equipment, and constant whether FMCSA was referring to model before model year 2000 explained how installation are over and above what the years or calendar years, as these are not the proposed technical standards would majority of the trucking industry would the same. The association noted the be difficult to apply, given their unique incur to comply with mandated ELDs, additional requirement that the engine operations. and were not part of the cost analysis of actually have an ECM is crucial in the FMCSA sought comments on issues the SNPRM. event that a mechanically controlled related to installing and using an ELD The Driveaway-Towaway Carriers and engine was installed in a vehicle with on CMVs manufactured prior to 2000 the Driveaway-Towaway Coalition a model year 2000 or later. [79 FR at 17668, Mar. 28, 2014]. These provided detailed descriptions of their One carrier was concerned about light comments are also discussed under collective operations. Both sets of duty vehicles with On-Board Section X, W, Pre-2000 Model Year commenters noted that FMCSA has Diagnostics (OBD–II) ports. It stated that CMVs, of this preamble. recognized the unique nature of OBD–II ports cannot share data if they Driveaway-towaway operations. A driveaway-towaway operations, are already dedicated for another number of comments to the SNPRM referencing the exceptions and purpose. This situation exists in several questioned how ELDs would affect provisions in the CFR. The Recreational styles of its vehicles equipped with driveaway-towaway operations. Several Vehicle Industry Association offered OBD–II ports; the ports are already commenters, including ATC, statistics for the driveaway-towaway occupied by auxiliary equipment. Driveaway-Towaway Carriers (a group companies demonstrating a low crash Another problem exists with capturing representing Classic Transport, Inc., frequency. data from OBD–II ports: There are five Horizon Transport, Inc., and Quality Dealerships. ATD wrote that some different protocols used in OBD–II and Drive-Away, Inc.), the, Recreational dealerships use contract drivers to the software is proprietary to the vehicle Vehicle Industry Association, and operate new and used CMV inventory in manufacturer. This would require the Driveaway-Towaway Coalition intra- or interstate commerce; others use vehicle manufacturer to release their

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software to use the OBD–II to capture manufacture decides which to Some commenters asked for an the necessary data effectively. A implement and most vehicles exception for private motor carriers. A towaway driver asked how the driver is implement only one of the protocols. It commenter believed an exception to record time if there is no engine is often possible to deduce the protocol would be appropriate because private control unit (ECU) plug available. used based on which pins are present motor carriers are not usually generating revenue through hauling, crossing State 3. FMCSA Response on the J1962 connector. While OBD–II diagnostic, connectivity needs, and lines, or driving on the roads as much Both driveaway-towaway operations reporting capability vary by as for-hire carriers. A commenter asked and the operations associated with truck manufacturer, FMCSA believes that ELD how lawn services, private delivery, dealers represent a unique operational providers will work with each vehicle horse show teams, etc. would be challenge concerning the use of ELDs. manufacturer for specific details. handled. A commenter wrote that his or FMCSA believes that while many of her drivers were working in the field, these operations will fall within the D. Requests for Exceptions From the where they may not have any current ‘‘timecard’’ provisions for HOS ELD Mandate for Certain Segments of technological connectivity. For flatbeds; recordkeeping, some will not. the CMV Industry specialized heavy-haulers; auto In today’s rule, FMCSA includes an 1. Comments to the 2011 NPRM transporters, or any other segment of the exception from the ELD mandate for industry where drivers have to do their While the NPRM preserved the driveaway-towaway operations, as own loading, unloading, or load exception for short-haul drivers who defined in 49 CFR 393.5, provided that securement, a commenter wrote that the vehicle driven is part of the occasionally require RODS to continue ELDs would cripple the industry. shipment delivered. FMCSA to use timecards under § 395.1(e), it did Commenters also asked for an exception acknowledges the concerns raised by not provide for other exceptions. This for testing a CMV when it is being these operators. FMCSA understands exception was limited to drivers serviced or repaired. that ELDs may not fit their operational requiring RODS no more than 2 days in Comments from the following special model when providing a one-time any 7-day period; on those days, they industries or types of operations are delivery of a vehicle. Neither the could maintain paper RODS. FMCSA discussed below: Agricultural-related driveaway-towaway company nor the asked for comment on whether it should operations; utilities; construction, oil driver own or lease the vehicles that grant other exceptions. Responses were and gas, and ready-mix concrete they will be driving under this received from businesses, trade industry; pyrotechnics operations; exemption. associations and others representing driver salesperson operations; motion This exception only applies to school bus operations, truck rental picture industry; and waste and driveaway-towaway operations where operations, agricultural operations, recycling industry. the CMV being driven is the commodity. construction, maintenance, oil and gas Agriculture-related operations. The These drivers will be required to keep operations, utilities, concrete companies Agricultural Retailers Association proper RODS and retain the same and hazardous materials transporters. interpreted the proposed ELD mandate number and categories of supporting Many commenters believed FMCSA would not apply to agricultural documents as those required to use should provide an exception for their operations. It based its interpretation on ELDs plus toll receipts. FMCSA believes segment of the industry or their the rule FMCSA published March 14, that these operators will be easy to operations from the mandate to use 2013 (78 FR 16189), which provided recognize at roadside; by the nature of ELDs. Commenters mainly focused on agricultural exceptions to the HOS rules their operation, drivers will be carrying the nature of their operations or the in part 395. In contrast, several supporting documents that explain their costs of EOBRs. A hazardous materials individual commenters believed that the operation. To the extent that operations transporter raised security concerns proposed rule would apply to at a dealership fit the definition of a over tracking of vehicles. An agricultural operations. These driveaway-towaway operation, those organization representing concrete commenters maintained that the ELD operations are able to benefit from this companies recommended a limited mandate would be cost prohibitive for exemption. expansion of the short-haul exception farm and ranch operators. FMCSA also includes an exception for for drivers occasionally exceeding 100 One commenter noted that to those drivers operating CMVs older miles. agricultural commodities are seasonal in than model year 2000, as identified by nature and asked how the ELD mandate the vehicle identification number (VIN) 2. Comments to the 2014 SNPRM would affect exemptions to the HOS of the CMV. Comments have indicated In the SNPRM, FMCSA proposed only rules for the transportation of anhydrous and FMCSA’s research has confirmed a limited exception to the ELD and liquid fertilizer. that pre-2000 model year trucks may not mandate—for drivers who are rarely An individual working for a company allow the ELD to connect easily to the required to keep RODS. Drivers who in the agricultural seed industry also engine. While the Agency has confirmed need to use RODS infrequently or mentioned the seasonal nature of the that there are ways of equipping older intermittently would be allowed to company’s operations. The company vehicles to use an ELD consistent with continue using paper RODS, if they are has CMV’s operating in interstate today’s rule technical specifications, not required to use RODS more than 8 commerce on the road every day of the these are not always cost beneficial or days in any 30-day period. The 2 days year, but most of its drivers qualify and practical. Further, the Agency lacks out of 7-day period proposal in the use the 100- or 150- air-mile short haul confidence that the technology will be NPRM was eliminated in light of the 8 exemptions. The commenter wrote that available to address this entire segment days in 30 exception. during certain seasons (i.e. planting, of the market (pre-2000 model years) at Many commenters to the SNPRM detasseling/pollinating, harvest), some a reasonable cost. believed that ELDs are not necessary or of the drivers may increase their driving While OBD–II does support 5 appropriate for drivers in their and may need to fill out RODS more signaling protocols, none of these are particular industries, and asked that than 8 times in a 30 day period during proprietary. Each protocol is outlined in their industry be excepted from the a 3–6 week season. The commenter the standard and the engine requirement to install and use ELDs. noted that these drivers are not

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professional, over-the-road truck slow moving crane on the highway for amount of commercial leasing, focusing drivers, but production and research less than 5,000 miles per year is instead on the consumer market. associates who mainly operate pickup statistically not a risk to the traveling The APA did not believe that ELDs trucks with trailers that put them over public. The Associated General would improve safety or prevent crashes the weight limits, qualifying them as Contractors of America (AGC) urged for drivers within the fireworks CMVs. The commenter stated that FMCSA to exempt the construction industry. The commenter wrote that putting ELDs in all of these pickups— industry from the ELD mandate. AGC ELDs could actually contribute to more which are only occasionally used as noted that Congress directed FMCSA to crashes as a distraction for drivers who CMVs—would be a significant burden to provide special consideration to are not used to them. The APA wrote the company. construction drivers in the HOS that it could not comply with the Utilities. Henkels & McCoy Inc. regulations by allowing construction mandate until ‘‘plug and play’’ devices, believed the proposed regulation was drivers to reset the on-duty clock after which can be rented on a short term designed for long-haul truck drivers, not an off-duty period of 24 or more basis, become readily available. APA their drivers who are power line, consecutive hours, showing Congress’ requested relief be provided to small pipeline, and telecommunications recognition of the unique circumstances operators, especially those that must workers who only operate a CMV short faced by the industry’s drivers. The rely on rented vehicles and intermittent/ distances to and from or on a job site. commenter also noted that no studies casual drivers over a short period of The commenter noted that utility have concluded that there is a safety time to handle all of their business project job sites often span great deficiency specific to construction commitments. distances where the majority of the workers driving under these rules. Driver/salespersons. YRC Worldwide driving is accomplished on the AGC believed that the mandate would Inc. (YRC) said that driver salespersons construction right of way, not on public create unreasonable impacts on the who exceed the short-haul exception in roadways. Henkels & McCoy, Inc., noted construction industry given the cost of § 395.1(e) should be exempted based on that some of these projects might not fall implementation and administration their records availability, starting and under the short haul exemptions in issues. The commenter noted that the ending their shifts at the same location, § 395.1(e) or the current interpretations constant vibrations, jarring movements, and serving in the role of driver of Utility Service Exemption from the and bumps are likely to have an impact salesperson. They should not be denied HOS rules, thereby requiring the on ELD operations, longevity, and the exemption because of an arbitrary installation of ELDs in thousands of accuracy. AGC reported that several of mileage calculation. Based on the pieces of equipment that in the course its members claim that there is at least flexibility it needs in its city fleet, YRC of a day may only be operated a few a 10 percent failure rate for ELDs. The wrote that it may have to equip all miles and may not traverse a public commenter wrote that the purchase and vehicles with ELDs and train all the roadway for days or weeks. installation of ELDs will be far more driver salespersons to ensure they could Construction, oil and gas, and other expensive than retaining records with serve customers outside a 100 air-mile specialized operators. A commenter paper RODS and believed that FMCSA radius. from the service and drilling equipment estimates fall far short of the actual Motion picture industry. The Motion industry wrote that ELDs are costs. AGC believed that administrative Picture Association of America (MPAA) unnecessary because the drivers seldom issues related to identifying drivers, recommended that FMCSA permit the drive far, but do not qualify for the particularly temporary drivers, and non-electronic interchange and short-haul exception due to their longer correctly recording driving time would production of RODS, at least for hours. Because of the conditions under cause problems for the construction production drivers and other similarly which those trucks operate, the industry. AGC asked FMCSA to situated drivers, i.e., those who operate commenter wrote that maintenance consider this record and extend its part multiple CMVs or are employed by would be impossible. Another 395 exemption to the new ELD multiple motor carriers. This approach commenter questioned if FMCSA had proposal. could be made permanent, or FMCSA taken into consideration the ability of Pyrotechnics. The American could apply it to production drivers for ELDs to accommodate the HOS rules Pyrotechnics Association (APA) an appropriate period beyond the applicable to oil fields. supported limiting the scope of the ELD proposed, industry-wide compliance A commenter who operates a small mandate to drivers who are currently deadline. crane company asked FMCSA to subject to keeping RODS. The APA, MPAA believed that an exception for consider an exception for special mobile however, believed that FMCSA should drivers who operate multiple CMVs or machinery that sometimes needs to be provide an exemption for industries that are employed by multiple motor carriers moved more than 100 miles. The are engaged primarily in providing would allow ELD technology to mature, commenter maintained that, although services or transporting tools of the with drivers generating less complex the company’s drivers will not usually trades, as opposed to long-haul trucking. RODS, before requiring production exceed the 8 days in 30 day exception The commenter wrote that the majority drivers to produce ELD-generated, all- while driving a crane, they will at times of its members operated CMVs over electronic RODS. The MPAA believed exceed that amount when moving one of short distances to and from job sites and that ELD providers are likely to focus on the large cranes. The commenter noted provided a detailed explanation of their releasing ELDs suitable for the most that older cranes do not have modern operations. Based upon data provided common CMV operations and electronic engines and computers to by APA members and the carriers sophisticated ELDs will not be available support a compliant e-log device, and currently underwriting vehicles to the when the rule is implemented. asked whether FMCSA expects them to industry, during the peak Fourth of July Ready-mixed concrete. Both Glacier modernize the engines to be e-log season, the industry rents more than Northwest and Cemex Construction compliant. The commenter asserted that 3,500 vehicles for the 7–14 day period. Materials Pacific believed the rule this process would not only be an The two primary rental truck suppliers would force companies to install ELDs, excessive financial burden to a small to the fireworks industry have indicated penalizing the ready-mixed concrete company, but would also achieve no that neither is planning to install ELDs industry because of the nature of its safety gain worth the cost because a at this time because they do a minimal product and unpredictable operations.

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The National Ready Mixed Concrete FMCSA cannot quantify the costs to a requirement for real time tracking of Association said that this proposal, in carriers, the Agency believes extending CMVs. effect, is the true universal approach the ELD mandate to these drivers would FMCSA believes that ELD providers requested by NTSB. Instead, all three not be cost beneficial.’’ 15 While the will address the needs of specialized commenters suggested that the rule commenter wrote that it understands industries. We note that Congress did exempt drivers operating under the Agency’s desire to prevent abuse of not address concerns of specific § 395.1(e)(1), but eliminate the 12-hour short-haul, local-route status, it believed industry sectors in mandating a on-duty threshold. Both Cemex and that the proposed remedy is excessive, requirement for ELDs. Glacier wrote that ready-mixed concrete unnecessary, and will produce E. Exceptions for Small Business industry drivers are not subjected to contradictory results. It agreed with the fatigue-inducing situations and footnote that it is not cost beneficial. 1. Comments to the 2011 NPRM generally operate under § 395.1(e)(1), The association commented that time Because small businesses comprise but may need to work longer days. cards adequately document HOS such a large portion of the motor carrier The National Ready Mixed Concrete compliance. The commenter wrote that population subject to the FMCSRs, Association commented that the reason whereas the time card is an absolutely FMCSA stated in the 2011 NPRM that for the proposed ELD mandate for CMVs accurate record of duty time, an ELD it is neither feasible nor consistent with ‘‘is to obtain better Hours of Service will be a poor tracker of driving time in (HOS) compliance.’’ The commenter the Agency’s safety mandate to allow a the short-haul, local route waste and motor carrier to be excepted from the described the working conditions of recycling industry. mixer drivers, and commented that, requirement to use EOBRs based only because of these conditions and 3. FMCSA Response on its status as a small business entity. exemptions to HOS compliance, making Several motor carriers, however, Subject to limited exceptions, today’s contended that very small operations use of ELDs by mixer drivers ‘‘is a rule establishes clear requirements for technical inapplicability.’’ should be excepted. One commenter the use of ELDs in CMVs operating suggested that ELDs should be required Since mixer drivers are only in the under circumstances where drivers CMV or driving a small amount of the only for fleets of 25 or more trucks, currently must keep paper RODS. another would set the threshold at 100 time they are on-duty, the commenter Generally, the requirements apply to believed that ELDs cannot accurately or more trucks. An owner-operator drivers who are subject to the HOS wanted the rule to allow owner- determine HOS compliance or limits under 49 CFR part 395, and do productivity for mixer drivers. operators who own and drive one truck not satisfy the short-haul exception to to use a Smartphone system that uses Waste and recycling industry. The the RODS requirement. FMCSA National Waste and Recycling GPS satellite signals for location considered all the comments and that, tracking and is not integrated with the Association commented that the subject to a narrow exception, declines industry operates a unique fleet that truck’s on-board computer. to provide industry-specific exceptions, Associations representing small motor differs significantly from long-haul given the lack of safety performance trucks and other short-haul trucks. The carriers also wanted special data for specific industry segments and association provided a detailed consideration. The Air and Expedited the fact that industry segments often description of its operations. The Motor Carrier Association, National overlap. commenter was concerned that the ELD Association of Small Trucking The Agency, however, has provided may not be able to handle unusual Companies, and The Expedite limited exceptions from the ELD stresses inherent in their operations and Association of North America asked for mandate. The 8-day out of 30 threshold may require constant maintenance. a simple waiver procedure for small The commenter wrote that FMCSA is intended to accommodate drivers businessmen, reasoning that the EOBR has acknowledged and research has who infrequently require RODS. The requirement would impose needless shown that fatigue is less of a problem driveaway-towaway exception costs on hundreds of thousands of small for short-haul drivers, for a number of addresses unique aspects of those businesses. The National Federation of reasons. Further, the association operations, but only if the vehicle Independent Business (NFIB) believed commented that Congress recognized driven is or is part of the shipment. The that expanding the EOBR rule to cover the unique nature of local routes by pre-2000 model year exception reflects all CMV drivers subject to the HOS limiting the required use of ELDs to concerns about employing an ELD on requirements ‘‘is unnecessarily punitive CMVs operated by a driver subject to the such vehicles. to small businesses that operate HOS and RODS requirements. It wrote FMCSA anticipates that most of the locally.’’ that the Congressional intent is clear: industry segments seeking relief from Given the disproportionate percentage Local route, short-haul drivers who the ELD mandate are addressed, in part, of small businesses in the industry, the show HOS compliance by the use of under the short-haul exemption under NLA felt that any final rule that time cards do not need to use ELDs. The 49 CFR part 395. ELD use will be mandates EOBRs for all CMV passenger association commented that the Agency, required only if a driver operates carriers without a specific cost-benefit however, is now proposing that if a outside the short-haul exception to the analysis of the effect of the rule on driver needs to use paper logs for more paper RODS provision for more than 8 smaller passenger-carrying CMVs than 8 days in any 30-day period, that days of any 30-day period. ‘‘would be arbitrary, capricious and driver must use an ELD. The commenter As to the concern about location excessive.’’ The association argued that was puzzled by the proposed 8 in 30- tracking technology creating a security exempting small businesses whose day threshold because it directly risk for hazardous materials, FMCSA safety records demonstrate satisfactory contradicts the language in footnote 15 notes that today’s rule does not include compliance with the HOS rules from an on page 79 FR 17680, which states, EOBR mandate would not equate to ‘‘Today’s SNPRM would not require 15 FMCSA acknowledges an error in the toleration of noncompliance. Those referenced footnote. It was intended to read, short-haul drivers who would need to ‘‘[t]oday’s SNPRM would not require short-haul drivers would still be required to keep keep RODS more than 8 days in any 30- drivers who would need to keep RODS not more RODS and operate within the HOS day period to use an ELD. Although than 8 days in a 30-day period to use an ELD. . . .’’ limitations. The association asserted

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that members of the industry that F. Exceptions for CMVs Under 26,001 passengers (including the driver) should operate smaller CMVs for shorter Pounds or Carrying Between 9 and 15 be exempt. The association noted that distances and shorter periods of time are Passengers (Including the Driver) the Department of Transportation not motivated to falsify RODS. 1. Comments to the 2011 NPRM provides relief for these types of vehicle The Advocates for Highway and Auto and their drivers under 49 CFR parts 40, Although the NPRM did not propose 171–180, 382, 383, and 397. The Safety (Advocates), however, supported an exception to the ELD requirement for association also commented that a the reasoning behind the Agency’s drivers engaged in operating CMVs vehicle designed to carry 15 or fewer decision not to except small businesses under 26,001 pounds or vehicles from the EOBR requirement. Advocates handling between 9 and 15 passengers, passengers is not substantially different stated that exempting some or all small the NFIB believed FMCSA should from the driving characteristics of a businesses would undermine the provide an exception for drivers privately operated vehicle of the same purpose and safety benefits sought by operating CMVs with a gross vehicle size. proposing the rule and render it weight under 26,001 pounds. The NFIB The NFIB recommended exempting ineffectual. stated that the rule would CMVs with gross vehicle weights (GVW) 2. Comments to the 2014 SNPRM disproportionately affect small business of less than 26,001 pounds from the ELD and fails to follow Executive Order requirement. The NFIB’s comments to As with the commenters to the 2011 13563. It stated that an ELD would have the SNPRM largely echoed their NPRM, many commenters to the ‘‘little or no positive effect on highway comments to the NPRM. They also SNPRM wanted an exception for small safety for small trucks and vans.’’ For stated that since these regulations are fleets and owner operators, including many small plumbing, electrical, and only imposed on drivers engaged in other service providers, the NFIB wrote one-truck/one-driver operations. commerce, the same driver, driving the that the cost would be extremely same vehicle, along the same route 3. FMCSA Response prohibitive. It believed that many other factors provide incentives for the small would be regulated differently For those motor carriers whose business owner to use medium trucks depending on whether the vehicle is drivers engage in local operations, ELD responsibly, including market factors being used for personal or business use would be required only if a driver and the fact that they live and drive purposes. The NFIB stated that this operates outside the timecard provisions within the community. decision to regulate drivers engaged in of part 395 for more than 8 days of any commerce is based on an assumption 30-day period. The requirement would 2. Comments to the 2014 SNPRM with no support; namely, that being ‘‘in be applicable to the specific driver The SNPRM would require a driver of commerce’’ has an adverse effect on the rather than the fleet. FMCSA notes that a CMV, as defined in 49 CFR 390.5, who driver’s ability to drive the same vehicle its safety requirements generally do not is subject to the HOS regulations to use that may be driven for personal uses. vary with the size of the fleet and the an ELD, unless the driver operated ELD rulemaking should not deviate under the short-haul exception or 3. FMCSA Response from that practice. While Federal qualified for the 8 out of 30 day FMCSA acknowledges the agencies are required to consider the exception. Thus, it would include a commenters’ concerns but continues to impact of their rulemakings on small CMV under 26,000 pounds or a CMV believe the underlying HOS businesses, as defined by the Small designed or used to transport between 9 Business Administration’s size and 15 passengers (including the driver) recordkeeping requirements should not standards (discussed later in the for direct compensation. be altered, which in turn, limits the preamble under the Regulatory Commenters had questions and Agency’s discretion in considering relief Flexibility Act analysis), FMCSA is not concerns about how the proposed rules from the ELD mandate. MAP–21 required or expected to provide an would affect light-duty vehicles. An requires that the Agency impose the exception to its safety rules based solely individual commenter and the AGC ELD mandate on drivers who prepare on the fact that the businesses are small. suggested that the ELD requirement only handwritten RODS. Safety would not be This approach also is consistent with apply to vehicles of a size requiring a enhanced by creating a new category of the provisions of MAP–21 (49 U.S.C. driver with a CDL. Both commenters relief from the RODS requirements. 31137), which does not distinguish wrote that drivers operating vehicles Regardless of the size of the vehicles between motor carriers or their drivers between 10,000 and 26,001 pounds are being operated, any driver who is based on the size of their operations. usually engaged in short-haul unable to satisfy the eligibility criteria operations; and, when a log is required, Today’s technical specifications for the short-haul exception must use it is likely because they are on duty require that all ELDs be integrally RODS. more than 12 hours or do not start and synchronized with the engine. However, FMCSA continues to grant relief in stop in the same location. While the rulemaking does not preclude the FMCSA regulations apply only to the form of an exception in § 395.1(e) to use of smart phones or similar devices interstate operations, commenters wrote those drivers operating in ‘‘short-haul’’ which could achieve integral that most States will adopt the rules for operations. Drivers who infrequently synchronization, including wireless intrastate operations. They believed that need to keep RODS (i.e., no more than devices. ELDs will then be required in almost all 8 days in any 30-day period), may In response to the National Limousine vehicles rated over 10,001 pounds, continue relying on paper RODS. Association, FMCSA notes that the which includes 1-ton pickups and 1-ton However, because the Congressional Agency is required to consider the and up work trucks where, they mandate to require ELDs extends to impact of its proposed regulations on maintain, fatigue is not an issue. The CMVs as defined under 49 U.S.C. 31132, small businesses. See XIV. B. commenters believed that this would FMCSA declines to limit the regulation (Regulatory Flexibility Act), below. create an undue financial burden. to CMVs over 26,000 pounds or exempt However, it is not required to perform NLA proposed that vehicles designed small passenger vehicles. analyses for particular industry sectors. or used to transport between 9 and 15

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G. ELDs Only for Unsafe Carriers or compliance with HOS rules. Among ATA wrote that the Agency’s attempt Drivers other requirements, the regulations are to limit supporting document retention to describe identification factors that to a single document is ‘‘unrealistic,’’ 1. Comments to the 2011 NPRM enable documents to be used as and that motor carriers would have to In the February 2011 NPRM, FMCSA supporting documents, specify ‘‘the keep a broad range of multiple requested comments on the potential number, type, and frequency’’ of documents. One motor carrier advantages, disadvantages, and supporting documents that must be commented that the Agency should not practicality of an exception from the retained by a motor carrier, allow require a minimum number of EOBR requirements for motor carriers verification at a reasonable cost, and documents. Another large motor carrier with few or no HOS violations. Many prescribe a minimum retention period commented that the NPRM provided commenters supported the contention of 6 months. The statute defines ‘‘no guidance as to how many in the 2010 rule and believed that ‘‘supporting document’’ as ‘‘any documents must be included.’’ The FMCSA should not mandate EOBRs for document that is generated or received commenter wrote that the NPRM could safe drivers or motor carriers. Other by a motor carrier or [CMV] driver in the be interpreted as requiring ‘‘all’’ commenters felt that an exception normal course of business that could be documents, records, and information should be available for safe drivers or used, as produced or with additional generated or received by the motor motor carriers. identifying information, to verify the carrier in the normal course of business. A number of commenters, including accuracy of a driver’s [RODS].’’ several trade associations, supported 2. Comments to the 2014 SNPRM limiting the EOBR mandate to carriers 1. Comments to the 2011 NPRM At the SNPRM stage, FMCSA with severe or chronic HOS violations. The 2011 NPRM proposed limiting significantly modified its proposal Other commenters, however, stated that the supporting documents a motor governing supporting documents. The a potential exemption from the EOBR carrier would need to retain and revised proposal would limit the requirement based on a lack of HOS defining the term ‘‘supporting supporting documents that a motor violations ‘‘would result in endangering document.’’ The proposal recognized carrier must retain by specifying a truck drivers and the motoring public.’’ that driving time information would be maximum number and provide They argued that just because a provided through the mandated use of categories and required elements for company does not have a documented EOBRs in CMVs. supporting documents. Like the NPRM, history of violations does not mean that the Agency’s proposal did not require FMCSA proposed in the NPRM to violations have not occurred. motor carriers to retain supporting define ‘‘supporting document’’ in a way documents to verify driving time 2. Comments to the 2014 SNPRM similar to the definition in section because the ELD would automatically In the SNPRM, the Agency did not 113(c) of the HMTAA. Only one capture this information. The Agency’s propose an exception based on HOS document would have been needed for proposal did, however, require motor compliance history. Nonetheless, some the beginning and end of each ODND carriers to retain, for each driver, commenters felt that experienced period if that document contained all supporting documents to verify a drivers or drivers with a history of safe the necessary elements—personal driver’s ODND periods. In terms of driving should not be required to use an identification, date, time, and location. number and frequency, FMCSA would ELD. Otherwise, the motor carrier would have require a motor carrier to retain up to 10 been required to retain several 3. FMCSA Response documents for a driver’s 24-hour period. documents—enough to show Electronic mobile communication FMCSA acknowledges commenters’ collectively all the necessary records covering a driver’s 24-hour concerns, but the Agency disagrees with information. period would count as a single the suggestion to provide an exception ATA, Werner Enterprises, Inc. document. Other types of supporting for experienced drivers with good safety (Werner), and Roehl Transport found documents that are relevant to distinct records. Such an exception would be the proposed definition too broad, too activities—such as a bill of lading for a difficult to craft with regard to criteria expensive, and overly burdensome. particular delivery or an expense for identifying eligible drivers and ATA commented that the definition did receipt—would count as an individual difficult to enforce. Furthermore, in not allow for compliance at a document, as explained under Section enacting the MAP–21 provision ‘‘reasonable cost,’’ as required by VIII, B, Categories. If a driver were to requiring that the Agency mandate the HMTAA. The commenters believed the submit more than 10 documents for a use of ELDs, Congress did not predicate NPRM provisions could actually 24-hour period, the motor carrier would that requirement on any ‘‘safe driving’’ increase the burden for retaining need to retain the documents containing threshold. supporting documents. The commenters earliest and latest time indications. If also questioned why the definition from VIII. Discussion of Comments Related the supporting document cap were not the HMTAA contained a reference to to Supporting Documents reached, the motor carrier would be documents received from the CMV required to keep all of the supporting A. Definition and Number driver and the proposed definition of documents for that period. While the Section 113 of the Hazardous ‘‘supporting documents’’ in the NPRM Agency proposed a single supporting Materials Transportation Authorization did not. One commenter preferred the document standard for drivers using Act of 1995 (HMTAA) 16 requires the definition from the HMTAA. The ELDs, drivers who continued to use Secretary to adopt regulations under 49 commenters stated that at least some of paper RODS would need to also retain CFR part 395 to address supporting the data elements are usually missing all toll receipts. documents used by motor carriers and from documents created or received in The IBT stated its support for the authorized safety officials to verify a the normal course of business. With the supporting document proposal, as ELDs CMV driver’s RODS in order to improve exception of hazardous material motor do not automatically record ODND and carriers, several motor carriers believed other duty status periods. The CVSA 16 Public. Law 103–311, 108 Stat. 1673, 1676–77 that documents to verify ODND were also supported the proposed supporting (August 26, 1994). inadequate or unreliable. document provisions.

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ATA, however, noted that the number The Institute of Makers of Explosives definition, combined with clearer and type of supporting documents has (IME) and the National Private Truck categories, and a reduced number of consistently increased. It claimed that Council both asked FMCSA to continue required documents, will allow drivers the requirements in the SNPRM were to look at supporting document and carriers to comply at a reasonable excessive and unnecessary and do not requirements with an eye to providing cost. fulfill the Congressional directive to more flexibility and considering While FMCSA appreciates the desire allow for compliance at a reasonable additional means to reduce the to eliminate supporting documents or to cost to carriers. It recommended that compliance burden on carriers. wait until after widespread ELD use two supporting documents be required Other commenters mistakenly before implementing the requirement, per driver’s workday—the one nearest believed that FMCSA asserted that the FMCSA does not believe that the ELD the start of the day and the one nearest proposed supporting document changes eliminates the need for supporting the end—sufficient to verify the 14-hour will reduce paperwork. Drivers and documents. Today’s rule requires the rule. ATA noted that, according to a carriers will still have to retain certain retention of supporting documents prior FMCSA HOS rulemaking, only a documents for other business purposes. generated or received in the normal small percentage of drivers operate near In terms of the 10-document cap, ATA course of business—an essential the cumulative 60/70 hour duty time noted that, because it is rare for any resource for both authorized safety limit,17 and that fact does not justify document to reflect all of the required officials and motor carriers to verify FMCSA’s proposal for motor carriers to elements, carriers would have to compliance with the HOS rules. retain supporting documents for all substitute documents containing all Supporting documents are critical in mid-shift duty changes. The Truckload required elements except time, which checking ODND periods. FMCSA Carriers Association (TCA) also are not subject to the 10-document daily acknowledges that motor carriers retain suggested that the only other supporting cap. As such, the 10-document cap is a supporting documents for reasons other documents that should be retained are benefit in theory only and provides no than verifying compliance with the HOS the documents closest to the beginning actual relief from the HOS supporting rules, including complying with the and the end of the driver’s workday. documents requirements. rules of other agencies. Thus, the The American Bus Association (ABA) 3. FMCSA Response Agency did not project in the SNPRM or proposed limiting the supporting As explained in the 2014 SNPRM, in today’s rule any paperwork savings document requirement to five FMCSA made major changes to the associated with the supporting documents from three categories. FedEx proposed supporting documents documents provisions. suggested that motor carriers should regulations based upon public In terms of the number of documents only be responsible for fuel data plus comments submitted in response to the employed in on-site enforcement one other supporting document type, if NPRM. The Agency disagrees with interventions or investigations, the one exists. Knight Transportation, Inc. commenters that suggest that the Agency uses all types of supporting (Knight) noted that enforcement number of required supporting documents to evaluate a driver’s RODS. generally relies on no more than two to documents has been increased through Because of the scope of transportation three supporting documents. The the 2014 SNPRM. This final rule does activities and the range of documents, American Moving & Storage Association not change the fundamental nature of enforcement authorities cannot (AMSA) noted that, in the case of supporting documents; they are records effectively evaluate the accuracy of a household goods drivers, ODND time is generated in the normal business rather driver’s RODS based on a maximum of likely to be extensive and requested that than documents created specifically to two to three supporting documents per the required supporting documents be verify the duty status of a driver. duty day. FMCSA recognizes the kept to a minimum and simplified to the Because supporting documents used to number of supporting documents extent possible. verify driving time would no longer be obtained daily may vary based upon the The International Foodservice required of carriers that use ELDs, some driver’s activities. By establishing a Distributors Association, the Snack carriers subject to the ELD mandate maximum of eight supporting Food Association, and an individual would end up having fewer supporting documents this rule promotes safety by commenter noted that the location and documents than they were required to ensuring that authorized safety officials tracking functions in the ELDs should retain before today’s rule. And have the opportunity to evaluate eliminate the need for additional whenever possible, FMCSA tried to effectively the driver’s RODS and HOS paperwork. They therefore reduce the costs and complication of compliance. recommended elimination of supporting retaining supporting documents without Limiting required supporting document requirements. The National compromising the efficiency in ensuring documents to the start and end of the Waste & Recycling Association HOS compliance. workday is not adequate for ensuring suggested a total exemption from the In today’s rule, the definition of HOS compliance especially with regard supporting documents requirement for ‘‘supporting document,’’ makes clear to on-duty, not driving periods. local routes. that a document can be in ‘‘any Documents acquired throughout the day FedEx suggested that FMCSA wait to medium,’’ consistent with the SNPRM. are important in the enforcement of the modify the rule on supporting (The reference to CMV driver in 60/70-hour rule—a crucial part of documents until after the ELD rule has HMTAA is not repeated because a ensuring HOS compliance. Compliance been in effect long enough to determine driver’s obligations are addressed in with the 60/70-hour rule limits is based if drivers are falsifying their ODND time substantive provisions concerning on how many cumulative hours an on ELDs and if crashes are occurring as supporting documents.) In addressing individual works over a period of days. a direct result of drivers improperly the frequency requirement, the Agency Supporting documents are critical in recording ODND time. tied the cap to a driver’s 24-hour period. helping to verify the proper duty While the SNPRM proposed a 10 statuses for an individual in calculating compliance with the 60/70 hour rules. 17 Although this fact was attributed to FMCSA, document cap, FMCSA reduced the the statement apparently reflected the commenter’s supporting document cap to eight FMCSA notes that, absent sufficient view and not necessarily that of the Agency. documents in today’s rule. This documents reflecting each element,

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documents lacking time would count in dispatch records, trip records, or change the categories of documents applying the 8-document cap. equivalent documents; (3) expense required in today’s rule. receipts related to ODND time; (4) FMCSA also believes that the listed B. Categories electronic mobile communication categories of supporting documents, 1. Comments to the 2011 NPRM records reflecting communications combined with the reduced cap of eight The NPRM proposed four categories transmitted through an FMS for the documents per duty day, will not result of supporting documents: (1) Payroll, (2) driver’s 24-hour duty day; and (5) in an unreasonable burden. FMCSA trip-related expense records and payroll records, settlement sheets, or notes that two categories—electronic receipts, (3) FMS communication logs, equivalent documents that indicate mobile communications and payroll and (4) bills of lading or equivalent what and how a driver was paid. Drivers records—will typically not be documents. who continue to use paper RODS would documents a driver would have to Some commenters said the four also need to retain toll receipts. physically retain, and may be a part of categories represented a significant The ATA, the IME, and others a larger record that the carrier already expansion of the existing requirement. supported FMCSA’s proposal to relieve has to retain electronically or physically These commenters stated that the four motor carriers of the requirement to at the dispatch location or principal categories were confusing, vague, and retain supporting documents to verify place of business. unjustifiably burdensome, and instead on-duty driving time. ATA pointed out FMCSA eliminates the requirement to suggested short, specific lists of that because ELDs are synchronized retain supporting documents, such as documents. FedEx said that a short list with the vehicle, they consistently, toll receipts, that verify on-duty driving of supporting documents, used in the reliably, and automatically capture time for drivers using ELDs. Given that Compliance Review process, would vehicle movement, and the potential for ELDs will adequately track driving time, hold all carriers to the same standard. underreporting driving time is minimal, requiring such documents would be ATA said that a short list might be more if not non-existent. redundant and would not further the effective in getting motor carriers to NTSB, however, noted that it has purpose of this rule, which is to retain supporting documents. OOIDA found toll information, such as EZ Pass improve HOS compliance. FMCSA does not create a new cautioned that small-business motor data and toll receipts, to be some of the requirement that GPS records be carriers, particularly sole proprietors, most reliable information in verifying preserved after a crash. The Agency might not maintain payroll or expense HOS compliance. It recommended that currently requires that RODS and records, or use an FMS or FMCSA consider specifically listing toll supporting documents be retained for 6 communications logs. receipts and electronic toll data in the Many commenters agreed with the five categories of required supporting months after receipt and this Agency that EOBRs would make data. As to the requirement that drivers requirement does not change in today’s supporting documents related to driving who continue to use paper RODS still rule. Crash records are addressed in a time unnecessary. Other commenters, need to retain toll receipts, FedEx separate regulation. FMCSA emphasizes that drivers using however, recommended that the Agency suggested that FMCSA allow motor paper RODS must also keep toll continue to require supporting carriers to retain either toll receipts or receipts. These drivers are not required documents for driving time. A driver trip dispatch records, so long as those to use ELDs, and, absent an ELD, this said that supporting documents documents are created in the ordinary documentation of driving time is reflecting drive time show whether course of business. necessary. Required toll receipts do not routes conformed to speed limits, or if 3. FMCSA Response count towards the eight-document cap. a driver was speeding to achieve company productivity standards. The The role of supporting documents is C. Data Elements American Association for Justice to improve HOS compliance by 1. Comments to the 2011 NPRM wanted the Agency to continue providing verifiable records to compare requiring supporting documents for with the RODS to ensure the accuracy The February 2011 NPRM was based driving time to guard against EOBR of the information entered by the driver. on an assumption that only one equipment failure, drivers and motor Given the broad diversity of motor supporting document—containing carriers abusing the system, and carrier and CMV operations, the Agency driver name or identification number, multiple drivers using one truck. The does not believe that a specific list of date and time, and location—would be Association also wanted FMCSA to supporting documents is appropriate for needed for the beginning and end of require motor carriers to notify GPS verifying compliance with the HOS each ODND period within the duty providers immediately after a crash and regulations. FMCSA intends the five status day. Absent a document to require GPS providers to retain crash- categories of supporting documents to containing all four elements, a carrier related data for 6 months. accommodate various sectors of the would have been required to retain industry. Although ELDs eliminate the sufficient individual documents from 2. Comments to the 2014 SNPRM need for supporting documents that specified categories. Based on comments received to the reflect driving time, supporting Commenters suggested that the NPRM, FMCSA modified the documents are important in proposed requirements would demand a description of the categories of required reconstructing a driver’s ODND time significant expansion of their current supporting documents in the SNPRM. and other duty statuses—a key element recordkeeping responsibilities. For every 24-hour period a driver is on in overall HOS compliance, most Commenters also stated that at least duty, the motor carrier would be notably as it relates to the 14-hour and some of the proposed data elements are required to retain a maximum number weekly on-duty limits. FMCSA believes usually missing from documents created of supporting documents from the that the five categories proposed in the or received in the normal course of following five categories: (1) Bills of SNPRM clarified the requirement for business. Based on its research, one lading, itineraries, schedules, or supporting documents without commenter said that only drug testing equivalent documents that indicate the compromising the Agency’s control and custody forms, fuel receipts, origin and destination of each trip; (2) enforcement abilities. FMCSA did not and roadside inspection reports provide

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any of the proposed data elements than eight documents containing all position of guessing what FMCSA might useful in verifying ODND activity. four data elements, a document would find acceptable and going through a Because such a supporting document is qualify as a supporting document if it long and often costly process of rare, some commenters stated that motor contains each data element, except time. responding to FMCSA questions and carriers would be forced to retain Under this scenario, a document lacking public comment. multiple documents. ATA wrote that time would nonetheless count in 3. FMCSA Response the Agency’s attempt to limit supporting applying the 8-document cap. document retention to a single In today’s rule, the Agency retains the document is ‘‘unrealistic’’ and that D. Supporting Document Exemption for self-compliance option as it appeared in motor carriers would have to keep Self-Compliance System the NPRM and SNPRM. In 49 CFR many—and a broad range of— 1. Comments to the 2011 NPRM 395.11(h), FMCSA authorizes, on a case- documents. Another commenter wrote by-case basis, motor carrier self- The NPRM included a provision to that the NPRM could be interpreted as compliance systems. A motor carrier authorize, on a case-by-case basis, motor requiring ‘‘all’’ documents, records, and may apply for an exemption under carrier self-compliance systems, as information generated or received by the existing part 381 provisions for required by section 113(b)(4) of motor carrier in the normal course of additional relief from the requirements HMTAA. The statute requires FMCSA to business. for retaining supporting documents. provide exemptions for motor carriers to Because part 381 rules and procedures 2. Comments to the 2014 SNPRM use qualifying ‘‘self-compliance were developed in response to In the SNPRM, FMCSA modified the systems’’ instead of retaining supporting Congressional direction contained in data elements that a document must documents. FMCSA proposed using the section 4007 of the Transportation contain to qualify as a supporting procedures already in 49 CFR part 381, Equity Act for the 21st Century 18 and document. FMCSA agreed with ATA subpart C, Exemptions, to consider already contain detailed requirements and other commenters that relying on a requests for exemption from the concerning the application and review single document is generally unrealistic. retention and maintenance requirements processes for exemptions,19 the Agency Further, the SNPRM prescribed how the for supporting documents. In the NPRM, does not create a separate process for necessary elements related to the the Agency asked commenters to exemptions related to part 395 document retention cap. The proposed describe their current self-compliance regulations. In response to commenters data elements were: (1) Driver name or systems or the systems they might who asked if this would test FMCSA’s carrier-assigned identification number, anticipate developing. resources, FMCSA is confident that the either on the document or on another Klapec and Werner said they had self- Agency would be able to comply with document enabling the carrier to link compliance systems. One provided the requirements of HMTAA. Given the the document to the driver, or the some details on its auditing procedures. diversity of the industry, FMCSA vehicle unit number if that number can Several commenters were concerned continues to believe that a non- be linked to the driver; (2) date; (3) that the number of companies seeking prescriptive, flexible standard to location (including name of nearest city, exemptions for self-compliance systems achieve compliance is appropriate, and town, or village); and (4) time. If could severely test the Agency’s ability does not establish minimum standards sufficient documents containing these to respond. The Truck Safety Coalition for a self-compliance system. four data elements were not available, a and Advocates recommended E. Supporting Document Management motor carrier would be required to rulemaking to provide minimum retain supporting documents that requirements for self-compliance 1. Comments to the 2011 NPRM contain the driver name or motor systems. Advocates also wanted an FMCSA’s NPRM proposal would carrier-assigned identification number, explanation of how parts 381 and 395 require motor carriers and CMV drivers date, and location. would interact. A motor carrier to share responsibility for complying Schneider requested clarification recommended an expedited system for with the proposed supporting document about whether a document that does not approval of a carrier’s self-compliance requirements. The NPRM proposed that contain the four data elements would exemption. Although ATA believed that drivers submit supporting documents to meet the definition of a supporting using the part 381 process made sense, a motor carrier within 3 days or, in the document and need to be retained. it was skeptical that FMCSA intends to case of electronic records, within a Schneider noted that the only consider such applications seriously. single day. A motor carrier would be documents that have all four data 2. Comments to the 2014 SNPRM required to maintain an HOS elements are expense receipts, like management system to detect violations fueling, drug and alcohol chain-of- The SNPRM re-proposed the same of the HOS rules. The motor carrier custody forms, and accident reports. self-compliance system proposed in the would be required to retain supporting Schneider also noted that bills of lading, NPRM. ATA and the Ohio Trucking documents for its drivers for a period of dispatch records, and pay records do Association (OTA) commented on the 6 months. not contain a start time or end time and, self-compliance systems proposal. ATA A commenter objected to any in some cases, location information. As stated that it supports the proposed self- requirement that a motor carrier collect such, those documents do not verify a compliance system process and from the CMV driver documents of a driver’s duty record. appreciates the non-prescriptive personal nature generated during the approach and flexibility it provides. 3. FMCSA Response course of business to be used as However, the OTA stated that FMCSA supporting documents. The commenter FMCSA understands Schneider’s should develop and write requirements also objected to any obligation on the comment that some categories of for the self-compliance system process driver or the motor carrier ‘‘to alter, document may not contain some of the with comments from the public and the annotate or assemble documents from data elements. We believe, however, industry rather than forcing each that the driver identifier, date, and individual carrier to develop its own 18 Public Law 105–178, 112 Stat. 107 (June 9, location are crucial elements in HOS proposal. OTA stated that with no 1998). compliance. If a motor carrier has fewer guidance, motor carriers will be in the 19 See 63 FR 67608, December 8, 1998.

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the form in which they are generated in FedEx asked that FMCSA clarify supporting documents that permit the normal course of business.’’ OOIDA whether a carrier would be out of identification of a driver, but then store noted that small carriers may not keep compliance with the regulation if it had them in a manner or sanitize them so certain records that would qualify as no supporting documents kept in the the ability to link individual documents supporting documents. OOIDA asked carrier’s ordinary course of business that to the driver is lost. See Darrell Andrews FMCSA to clarify the requirements, fit the description of a supporting Trucking, Inc. Docket No. FMCSA– including whether drivers or motor document under the rule. FedEx also 2001–8686–21 (Final Order Under 49 carriers would be required ‘‘to note the suggested that FMCSA clarify what it CFR 385.15, January 19, 2001), aff’d in missing information on these means for a supporting document to be part, vacated in part, Darrell Andrews documents.’’ ‘‘effectively matched’’ to the Trucking, Inc. v. Fed. Motor Carrier corresponding driver’s HOS records. 2. Comments to the 2014 SNPRM Safety Admin., 296 F.3d 1120 (D.C. Cir. CVSA recommended that FMCSA 2002), remanded to Docket No. Like the NPRM, the SNPRM would require CMV drivers to keep the FMCSA–2001–8686–26 (Final Order on require motor carriers and CMV drivers proposed supporting documents for the Remand, Mar. 14, 2003); see also In the to share responsibility for complying current and past 7 days with them in the Matter of A.D. Transport Express, Inc., with the proposed supporting document vehicle, so that roadside inspectors Docket No. FMCSA–2002–11540–1 requirements. However, based on could have access to the documents to (Final Order Under 49 CFR 385.15, May comments to the NPRM, the supporting verify location, time, and date of all 22, 2000), aff’d, A.D. Transport Express, document provisions were changed. The driver duty status entries. Inc. v. Fed. Motor Carrier Safety proposed HOS management system was Admin., 290 F.3d 761 (6th Cir. 2002). among the provisions eliminated in the 3. FMCSA Response SNPRM. The definition and In today’s rule, FMCSA expanded the F. Requirements When ELDs requirements governing ‘‘supporting deadline for drivers to submit Malfunction and Requests for document’’ were clarified. FMCSA supporting documents to the motor Clarification Regarding State Laws carrier from 8 days to 13 days, extended the proposed time in which a 1. Comments to the 2014 SNPRM driver would be required to submit his consistent with the current period for or her supporting documents to the submission of RODS. While FMCSA Greyhound Lines, Inc. (Greyhound) employing carrier to 8 days, consistent does not require that drivers retain and Schneider National, Inc., asked for with the proposed submission period supporting documents in the CMV for a clarification on various parts of the for RODS. Proposed § 395.11(e) required prescribed period, it does require that a proposed rule. Greyhound asked a motor carrier to retain supporting driver make any supporting document FMCSA to make it clear that States may documents in a way that allows them to in the vehicle available to an authorized not impose supporting document be ‘‘effectively matched’’ to the safety official if requested during standards that are more specific than, or corresponding driver’s RODS. However, roadside inspections. FMCSA believes different from, the Federal standard. a motor carrier would still need to retain this approach achieves a reasonable and Schneider requested clarification on supporting documents received in the workable balance between the needs of whether toll receipts would be expected course of business for 6 months. enhanced enforcement during roadside for days where a driver is completing a ATA opposed the requirement that inspections and not requiring that motor paper ROD due to an ELD malfunction. carriers retain supporting documents in carriers modify their current document Schneider noted that, given the size of a way that allows them to be effectively management practices. its fleet, it will experience regular matched to the corresponding driver’s FMCSA notes that a motor carrier is device malfunctions, and it will RODS. Although ATA believed it was not required to create supporting consequently have to keep all toll reasonable to expect that carriers not documents not otherwise generated or receipts for all drivers to ensure it is in deliberately make matching difficult or received in the normal course of compliance on those days where frustrate investigators, it noted that ‘‘to business or to annotate such documents malfunctions occur. require that carriers go beyond in any manner. But a motor carrier or 2. FMCSA Response ‘retaining’ records (keeping them in the driver may not obscure, deface, destroy, manner in which they receive them) to mutilate, or alter existing information State laws or regulations addressing ‘maintaining’ them (by ensuring that found on a supporting document. supporting documents are not they can be easily matched by an Today’s rule does not require necessarily preempted by Federal law. investigator) goes a step too far.’’ ATA establishment of a new record The FMCSRs are ‘‘not intended to stated that responsible motor carriers management system specifically for preclude States or subdivisions . . . should not have to manipulate the supporting documents. However, the from establishing or enforcing State or manner in which a supporting rule retains the requirement that local laws relating to safety, the document is retained or be held supporting documents be retained in a compliance with which would not accountable for not facilitating such manner that allows them to be prevent full compliance with [the matching if there is no evidence of HOS effectively matched to the driver’s FMCSRs] by the person subject thereto.’’ violations. ATA also noted that the RODS. This is a long-existing 49 CFR 390.9. However, as a condition requirement that drivers submit requirement, well documented in the of Federal funding under the MCSAP, a supporting documents to their Agency’s administrative decisions. The State must have rules in place employing carriers within 8 days creates purpose is to enable a motor carrier, as compatible to Federal regulations an imbalance with the existing well as authorized safety officials, to adopted under the 1984 Act, subject to regulation that requires drivers who verify a driver’s RODS. (See e.g., In the certain exceptions. See parts 350 and keep paper logs to submit those logs and Matter of Bridgeways, Inc., Docket No. 355 of 49 CFR. Subject to permissible supporting documentation to their FMCSA–2001–9803–0009 (Final Order variances, a State law or regulation employing carriers within 13 days. ATA June 1, 2004)).20 Agency decisions make found by the Secretary of Transportation suggested that all drivers should be clear that a motor carrier cannot take to be less stringent than its Federal required to submit supporting counterpart cannot be enforced; a State documents within 13 days of receipt. 20 Available at http://www.regulations.gov. law or regulation more stringent than its

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Federal counterpart may be enforced April 13, 2011, the Agency published a drivers, representatives of motor carriers unless the Secretary decides the State notice requesting additional comments and other business entities, law or regulation has no safety benefit, on harassment (76 FR 20611). FMCSA representatives of the motor carrier is incompatible with the Federal wanted to ensure that interested parties industry organizations, authorized regulation, or would cause an had a full opportunity to address this safety officials, and other State agency unreasonable burden on interstate issue. The notice explicitly requested representatives. Transcripts of both commerce. 49 U.S.C. 31141(c). A motor information about driver experiences sessions are available in the docket for carrier such as Greyhound that believes with harassment. The notice asked if the this rulemaking. Web casts are archived a State law or regulation is incompatible same activities considered harassing at: http://www.tvworldwide.com/events/ with the FMCSRs may petition FMCSA might also be considered monitoring for dot/120323/ and http:// for review of the matter and the State’s productivity. It questioned if these same www.tvworldwide.com/events/dot/ eligibility of MCSAP funding. 49 CFR activities might be barred by other 120426/, respectively.22 350.335(d). Therefore, the Agency does existing provisions, and if additional MAP–21 not address the preemption of State regulations were needed. The notice supporting document requirements in also asked about the role that electronic In July 2012, Congress enacted MAP– this rulemaking. recorders might play in the ability of 21, mandating that the Agency adopt Today’s rule requires a motor carrier carriers, shippers, and others to pressure regulations requiring that certain CMVs to retain toll receipts for a driver who drivers to violate HOS regulations. be equipped with ELDs.23 As part of this keeps paper RODS in lieu of using an legislation, Congress defined ‘‘electronic ELD. However, the Agency does not Seventh Circuit Decision logging device’’ and required that expect a carrier to modify its supporting On August 26, 2011, the court vacated regulations ‘‘ensur[e] that an electronic document retention policy whenever a the April 2010 rule (Owner-Operator logging device is not used to harass a driver who regularly uses an ELD needs Indep. Drivers Ass’n v. Fed. Motor vehicle operator.’’ 49 U.S.C. 31137(a)(2) to complete paper RODS for a brief Carrier Safety Admin., 656 F.3d 580 (7th and (f)(1). The legislation eliminated the period due to an ELD malfunction. Cir. 2011)). The court held that, contrary prior reference to ‘‘productivity.’’ to the statutory requirement, the Agency 2. Comments to the 2011 NPRM IX. Discussion of Comments Related to failed to address the issue of driver Harassment harassment, namely, how the Agency Given the intervening events between A. Background and 2011 NPRM would distinguish between harassment issuance of the NPRM and the SNPRM, and productivity, how harassment including the Seventh Circuit decision 1. Background occurs, and how harassment would be and enactment of MAP–21, and the fact In enacting the Truck and Bus Safety prevented. that the SNPRM regulatory text and Regulatory Reform Act of 1988, On May14, 2012, following the court’s superseded the text included in the Congress required that regulations decision, FMCSA issued a rule that NPRM, FMCSA’s comment analysis addressing onboard monitoring devices removed the vacated language from 49 focuses on comments submitted to the on CMVs ensure that the devices not be CFR (77 FR 28448). Motor carriers SNPRM. used to harass CMV drivers. However, relying on electronic devices to monitor B. General the devices may be used to monitor HOS compliance are currently governed productivity.21 In its challenge to the by the rules addressing the use of 1. Comments to the 2014 SNPRM April 2010 EOBR rule in the U.S. Court AOBRDs in effect immediately before In accordance with the MAP–21 of Appeals for the Seventh Circuit, the court’s ruling (49 CFR 395.15). mandate, the 2014 SNPRM addressed OOIDA raised several issues, including These provisions were not affected by harassment, in part, through the new the Agency’s failure to ensure that the Seventh Circuit’s decision. technical specifications. Among the electronic recorders not be used to Public Listening Sessions technical specifications intended to harass CMV drivers. While the Seventh address harassment, the Agency Circuit litigation was pending, FMCSA FMCSA conducted two public included a mute function available published the February 2011 NPRM. By listening sessions to better understand during sleeper berth periods, edit rights, notice published on March 10, 2011 (76 drivers’ concerns about harassment. The and requirements addressing FR 13121), the Agency extended the first was in Louisville, Kentucky, on transparency and driver control over public comment period for the 2011 March 23, 2012, at the Mid-America editing. The complaints of drivers NPRM to May 23, 2011. Truck Show. The second was in focused mainly on pressures from motor Bellevue, Washington, on April 26, 2011 Notice and Request for Additional carriers. Based on their concerns, the 2012, at the CVSA Workshop. FMCSA Public Comment Agency also proposed procedural heard from commenters, both those in The Agency believed that it provisions aimed at protecting CMV attendance and those participating drivers from actions resulting from appropriately addressed the issue of through the Internet, who offered varied harassment in accordance with the information generated by ELDs, since opinions on the implementation and use not every type of complaint suggested a statute, both in the April 2010 rule that of electronic recorders. Commenters at was the subject of litigation and the technical solution. the Louisville session included drivers, Several commenters stated that the subsequent February 2011 NPRM, representatives of motor carriers, owner- SNPRM provisions adequately focusing on harassment in the context of operators, and representatives of addressed the issue of driver drivers’ privacy concerns. However, in OOIDA. At the Bellevue session, reaction to the litigation and to public FMCSA specifically sought the input of 22 In addition to the formal comment process and comments in response to the NPRM, on State MCSAP agencies because of their listening sessions, FMCSA also conducted a survey role in enforcing the HOS rules and of drivers and motor carriers to better understand 21 Public Law 100–690, Title IX, Subtitle B, sec. familiarity with electronic recording perceptions on the harassment issue, See Section 9104(b), 102 Stat. 4527, 4529 (November 18, 1988). XII. L of this preamble. This provision was subsequently revised and devices and other technical issues. 23 Public Law 112–141, sec. 32301(b), 126 Stat. codified at 49 U.S.C. 31137(a) by Public Law 103– Additional participants in the Bellevue 405, 786–788 (July 6, 2012) (amending 49 U.S.C. 272, 108 Stat. 745, 1004 (July 5, 1994). public listening session included 31137).

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harassment. Advocates wrote that the for the underlying violation. ELD The Agency included some of SNPRM fulfilled the Agency’s obligation technologies, including related OOIDA’s specific proposals to address following the decision of the U.S. Court technologies often employed in FMS, do harassment in today’s rule, such as of Appeals. Continental stated that the not necessarily result in driver making it unlawful for carriers to use SNPRM has adequately addressed the harassment; nor do they preclude ELDs to harass drivers and establishing issues of data privacy. The National actions that drivers might view as procedures for drivers to submit Shippers Strategic Transportation harassing. However, the Agency harassment complaints directly to Council supported FMCSA’s approach. believes that, on balance, the use of FMCSA. Some of its suggestions went Some commenters wrote that ELDs ELDs will protect drivers from pressures beyond FMCSA’s authority, such as the actually improved the relationship to violate the HOS rules by ensuring a suggestion that we provide for driver between drivers and dispatchers and better record of drivers’ time. As the compensation for time spent under out- decreased tension. Commenters pointed court noted in the litigation on the 2010 of-service orders in cases where out that ELDs provide transparency, EOBR rule, the term ‘‘harass’’ is not harassment is implicated in the ensure that both drivers and motor defined by statute and requires violation. With regard to the suggestion carriers have the same information, and amplification. 656 F.3d at 588. In order that we promulgate a regulation keep a record of interactions. OOIDA, to better understand the nature and protecting drivers who complain about however, commented that Congress told context of drivers’ harassment concerns, harassment from retaliation, we note the Secretary to ensure that ELDs are not the Agency undertook extensive that such protections already exist used to harass and that OOIDA believes outreach. The provisions proposed in under current law. Retaliation the SNPRM fell far short of the SNPRM, and reflected in today’s protections available to CMV drivers are implementing this mandate. In its rule, are largely reflective of this set forth in 49 U.S.C. 31105, which is comments to the NPRM, which are outreach. Today’s rule includes the administered by the Department of incorporated by reference into OOIDA’s definition of ‘‘harassment’’ proposed in Labor. The Agency declines to link comments to the SNPRM, OOIDA the SNPRM, that is, ‘‘. . . an action by harassment violations to the safety suggested specific proposals to address a motor carrier toward a driver rating process, consistent with the driver harassment.24 OOIDA also employed by the motor carrier Agency’s approach in the coercion criticized the Agency for addressing the (including an independent contractor rulemaking (80 FR 74695, November 30, issue of coercion and harassment in while in the course of operating a [CMV] 2015). We therefore also decline to separate rulemakings and addressing on behalf of the motor carrier) involving adopt OOIDA’s suggestion that drivers only harassment related to ELDs the use of information available to the be permitted to participate in required under today’s rule. motor carrier through an ELD . . . or compliance reviews involving Some commenters believed ELDs are through other technology used in harassment. FMCSA believes that not intended to improve safety, but only combination with and not separable harassment complaints can be serve as a management tool to track from the ELD, that the motor carrier effectively addressed through the drivers. Some commenters reported the knew, or should have known, would complaint process established through use of FMSs to direct drivers to do result in the driver violating § 392.3 or today’s rule and through the civil unsafe or even illegal things. Other part 395 [of 49 CFR].’’ penalty structure. commenters complained that neither FMCSA acknowledges that FMCSA nor the ELD could prevent C. Privacy; Ownership and Use of ELD harassment and coercion may often Data harassment by motor carriers. Many appear related. However, it is important drivers complained that the ELD would to recognize that the statutory basis for 1. Comments to the 2014 SNPRM limit their flexibility, and cause them to each requirement differs. While the drive while tired or stressed. In development of the proposed harassment provision is linked technical performance requirements, the 2. FMCSA Response specifically to ELDs as defined in MAP– Agency took into account drivers’ FMCSA believes today’s rule 21, Congress required that the Agency, privacy interests in the collection and appropriately implements MAP–21’s in adopting regulations under the 1984 maintenance of data. For example, the mandate requiring certain CMV drivers Act, prohibit motor carriers, shippers, proposed requirements included to use ELDs while addressing the receivers, and transportation industry standards affecting the concerns expressed about the potential intermediaries from coercing CMV handling of data and access for harassment resulting from ELD use. drivers in violation of specified requirements, ensuring only The rule adopts a clear prohibition regulatory provisions. See FMCSA’s rule authenticated individuals could access against driver harassment, subject to a on coercion, published November 30, an ELD system. These provisions are civil penalty in addition to the penalty 2015 (80 FR 74695). The Agency notes, part of today’s rule. however, that § 395.30(e) of today’s rule Several commenters expressed 24 OOIDA suggested the following specific does prohibit a motor carrier from concern about how the data collected proposals to address driver harassment: (1) coercing (as that term is defined in 80 from ELDs will be used. For example, Establish guidelines for the appropriate use of FR 74695) a driver to falsely certify the questions were posed about who owns EOBRs to improve productivity; (2) promulgate a driver’s data entries or RODS. the data recorded by an ELD, who will regulation to make it unlawful for motor carriers to use EOBRs to harass drivers; (3) establish The Agency encourages any driver see that data, and whether that data will procedures for drivers to complain about who feels that she or he was the subject be retained. Commenters also raised harassment and create a unit in FMCSA to review of harassment to consider the potential concerns about the use of data in private and act on complaints; (4) promulgate a regulation civil litigation. One commenter asked protecting drivers who complain about harassment application of the harassment from retaliation; (5) make harassment a factor provisions adopted today, as well as what would preclude law enforcement considered in compliance reviews; (6) permit FMCSA’s coercion rule and the from using data gleaned from ELDs to drivers to participate in compliance reviews remedies available through the charge truck drivers with other involving harassment; and (7) provide for driver Department of Labor, in determining violations such as speeding, illegal compensation for time spent under out-of-service orders where harassment is implicated in the which approach to pursue in light of the parking, and driving on restricted violation. specific facts. routes. Another commenter stated that

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FMCSA must ensure that data collected about the level of data collected for HOS concerns focused on ease of access to for HOS enforcement purposes will not enforcement. FMCSA did not propose a data on CMVs carrying propane and the be provided to other government requirement for real-time tracking of harm it could cause if the vehicle fell agencies for other purposes. CMVs or the recording of precise into the wrong hands. Specifically, location information. Instead, location anyone who wished to cause harm 2. FMCSA Response data available to authorized safety through a coordinated attack could hack An ELD record reflecting a driver’s officials would be recorded at specified the system to learn the whereabouts of RODS is the driver’s record. However, intervals; that is, when the driver any transport vehicle that is loaded with under the FMCSRs, motor carriers are changes duty status, indicates personal propane. NPGA commented that an responsible for maintenance of these use or yard moves, when the CMV outright requirement to install an ELD records for a 6-month period. Thus, engine powers up and shuts down, and on these vehicles, particularly for a drivers and carriers share responsibility at 60-minute intervals when the vehicle motor carrier with no demonstrated for the record’s integrity. FMCSA does is in motion. During on-duty driving violations, not only fails to improve not presently plan to retain any data periods, FMCSA proposed to limit the safety, but lessens the security of the captured by an ELD absent location accuracy for HOS enforcement transport of the fuel. documentation of violations during to approximately a 1-mile radius. When Knight stated that carriers must be investigations. a driver operates a CMV for personal allowed to track vehicle position of the In addition to other statutory privacy use, the position reporting accuracy CMVs they own to a proximity closer protections, MAP–21 limits the way would be further reduced to an than 10 miles, even when in personal FMCSA may use ELD data and requires approximate 10-mile radius. The conveyance. Though the driver may be that enforcement personnel use SNPRM did not propose that the ELD using the vehicle for personal use, the information collected from ELDs only to record and transmit any CMV location fleet still has an interest in and determine HOS compliance. See 49 data either to the motor carrier or to responsibility for the vehicle. The U.S.C. 31137 (e)(1) and (3).25 U.S. authorized safety officials in real time. commenter wrote that nothing within Department of Transportation ATA stated that the proposed the rule should impair the ability of the regulations govern the release of private precision requirements for monitoring owner of a CMV to track its location, information, including requests for vehicle location are quite reasonable. which should not be considered purposes of civil litigation. 49 CFR parts ATA believed that these requirements ‘‘harassment.’’ 7 and 9. Today’s rule includes industry should stave off any concern by drivers ATA believed the needs of carriers to standards for protecting electronic data; that records available to law monitor CMV location outweigh the it also regulates access to such data and enforcement during roadside impact on driver privacy. The requires motor carriers to protect inspections will present an intrusion on commenter stated that in the interests of drivers’ personal data in a manner their privacy, especially since this safety, security, and efficiency, motor consistent with sound business limited level of location monitoring will carriers must be able to monitor their practices. However, FMCSA has limited prevent law enforcement from knowing equipment and cargoes. authority to ensure total protection of the exact location a driver has visited. PeopleNet sought confirmation that information in the custody of third ATA wrote that respecting this GPS precision is only to be limited in parties. confidentiality may be important in the ELD application and that other MAP–21 also requires that the Agency some circumstances, such as when a enterprise solution applications will not institute appropriate measures to driver visits a medical specialist. be required to reduce GPS accuracy in preserve the confidentiality of personal Provided that law enforcement can still efforts to support optimization data recorded by an ELD that is reasonably verify HOS compliance, the processes and IFTA requirements. disclosed in the course of an FMCSR needs of both parties will be met. Eclipse Software Systems asked for a enforcement proceeding (49 U.S.C. Other commenters, however, asked clarification providing that the system 31137(e)(2)). To protect data of a who would have access to the tracking will be allowed to store data in greater personal nature unrelated to business data. These commenters believed that position for fleet records (such as highly operations, the Agency would redact the tracking was a form of harassment accurate fuel tax reporting), but that such information included as part of the in that it would allow carriers to harass when that data is divulged to law administrative record before a document the driver about his or her performance. enforcement it will be rounded or was made available in the public Other commenters viewed tracking as truncated to the number of decimal docket. an invasion of privacy in violation of places specified in section 4.3.1.6. The Finally, the Agency notes that Federal their constitutional rights. commenter noted that current FMSs law addresses the protection of The NPGA stated that technologies store data in far greater detail (often four individual’s personally identifiable similar to ELDs have previously been or more decimal points) for legitimate information maintained by Federal under consideration by the Pipeline and business purposes. agencies. See the Privacy Impact Hazardous Materials Safety 2. FMCSA Response Assessment for today’s rule available in Administration as one type of the rulemaking docket. technology that can be used in HM FMCSA acknowledges the concern transportation security. In comments about dispatchers and motor carriers D. Tracking of Vehicle Location; Real submitted to an advance notice of using real-time data in order to require Time Transmission of Data proposed rulemaking concerning the drivers to fully utilize their driving time 1. Comments to the 2014 SNPRM need for enhanced security to the allowed limits. However, FMCSA requirements for the motor carrier has not proposed, nor does it include in Location recording is a critical transportation of HM, put out by the today’s rule, any requirement for ELDs component of HOS enforcement. The Research and Special Programs to track CMV drivers in real time. As SNPRM addressed drivers’ concerns Administration and FMCSA (67 FR long as a motor carrier is not compelling 25 These measures will be included in the ELD 46622, July 16, 2002), NPGA opposed a driver to drive while ill or fatigued in implementation and training protocol currently location-tracking systems as a violation of § 392.3 or in violation of the under development within FMCSA. requirement for HM security. Its HOS limits of part 395, there is no

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violation of the FMCSRs. Authorized turn off, or turn down the volume, or The IME agreed that drivers should safety officials will not have access to the device must do so automatically. have access to their ELD data, including information during roadside inspections This requirement would only apply to options for a motor carrier to provide except the data required by today’s final FMSs or other technology that includes the data to drivers upon request. The rule that is related to HOS compliance. an ELD function and that includes a IBT also supported giving drivers the The SNPRM proposed limitations communications function. Given ability to obtain copies of their own ELD concerning the ELD data in order to drivers’ concerns about interrupted rest records available on or through an ELD. protect drivers from motor carrier periods, this is the single area in which IBT believed that it is critical that harassment, all of which are reflected in the Agency believed it necessary to drivers or driver representatives have, today’s rule. The Agency believes that address an issue that extends beyond upon request, immediate access to, and the enhanced security controls and the provisions of a minimally-compliant copies of driver ELD records for the 6 provisions protecting drivers from ELD. However, this protection does not months that the motor carrier is inappropriate pressures to violate the apply if a team driver is logged onto the required to retain the records. HOS rules will address many of the ELD as on-duty, driving. XRS, Verigo, and Zonar noted that concerns raised by drivers concerning Numerous commenters complained of obtaining the logs from the ELD will ELDs. Although ELDs might be viewed repeated contact by dispatchers, even limit drivers’ access to 7 days. primarily as tools for HOS during breaks and sleeper-berth time. Commenters wrote that drivers require recordkeeping, the data certainly can be One commenter wrote that the mute records for numerous reasons, including used by motor carriers to document function should be the decision of the comparing logs to settlement records, their operations more accurately than driver rather than automatic. She stated providing records required for tax they could by using paper RODS. that not all companies abuse their purposes, providing evidence in loss Further, for systems that include both drivers as the enforced automatic mute prevention claims, and qualification for ELD functionality and real-time tracking implies. and communications capabilities, the The IME stated that it did not oppose safety awards. It may be necessary for a device may capture what is transpiring ELD features that allow a driver to mute, driver to have access to more than 12 between a driver and a motor carrier or reduce volume, or turn off a device months of records. Commenters dispatcher. Although this technology is during sleeper berth status. Eclipse believed that access to driver’s records not required under today’s rule, such Software Systems stated that the audible is best achieved as a function of the technology also protects drivers from alarm required by section 4.1.5 of the carriers’ support system most carriers inappropriate pressures to violate the appendix is very important and should already have in place rather than as a HOS rules. not be muted if the vehicle is moving. function of the ELD. XRS asked whether Today’s rule limits the data that may Eclipse recommended that the rule be there could be an alternative method, be transferred from an ELD to amended to say the mute function does such as a Web-based login, to retrieve authorized safety officials. FMCSA, not apply when the engine is running the required information. It however, did not propose, nor does it and the vehicle is in motion. recommended that, when a driver leaves include in today’s rule, any limitation a carrier, the RODS be supplied on a 2. FMCSA Response on a motor carrier’s use of technology to jump drive in a PDF format to keep track its CMVs at a more precise level The complaint from drivers about costs at a minimum and not cause a than that shared with authorized safety being contacted during sleeper berth security risk by giving access to officials, including tracking of CMVs in time was a common one and FMCSA individuals who no longer have a real time for the purposes of the motor responds to that concern by requiring in relationship with the carrier. The carrier’s business. A motor carrier is free section 4.7.1 of the technical commenter questioned what amount of to use such data as long as it does not specifications of today’s rule, that the data may be requested by drivers if they engage in harassment or otherwise mute function either be engaged have been employed by the carrier for violate the FMCSRs. See 49 CFR 390.17. automatically when the driver enters at least 6 months. Extracting 6 months Given the limited requirements in sleeper berth status or that it allows the of data through the ELD would be terms of required location tracking, driver to manually select that function. costly. FMCSA does not agree that the risks (However, this function would not be Verigo stated that the electronic or suggested by the NPGA outweigh the available if a co-driver was logged in as printout format of the driver’s records benefits of ELDs. on-duty, driving.) In the event the CMV must be compliant with section 4.8.2.1, Some commenters viewed tracking of started moving, the ELD would default which is the comma separated values vehicles as an invasion of privacy. to on-duty, driving status, thereby (CSV) file output format for peer-to-peer While a legal basis for their position was overriding the mute function. FMCSA record exchange. The format will be of not always stated, some of these believes this addition of a mute function no value to the driver. The commenter commenters focused on their Fourth is important to allow drivers to obtain believed that records retrievable by the Amendment rights. FMCSA addresses adequate rest during sleeper berth or off- driver should be a PDF copy of the this position under Section XII, M, Legal duty periods. standard paper format in use today Issues—Constitutional Rights: Fourth F. Drivers’ Access to Own Records because graph-grid logs can be read, and Fifth Amendments, of this understood, printed, distributed, and preamble. 1. Comments to the 2014 SNPRM checked with ease by the driver without E. Mute Function The SNPRM provided that a driver a requirement to provide a utility has a right to access the driver’s ELD function for the driver to display the 1. Comments to the 2014 SNPRM data during the period a carrier must data. The commenter recommended the To protect a driver from disrupting keep these records. During the period requirement to access records from communications during rest periods, the that the data is accessible through the ELDs connected to backend servers be SNPRM proposed that, if a driver ELD, a driver must have a right to the eliminated and that records be retrieved indicates a sleeper-berth status, an ELD records without requesting access from from support systems connected to the must allow the driver to either mute, the motor carrier. ELD.

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2. FMCSA Response accept edits and certify the logs on the minor recordkeeping errors that do not FMCSA acknowledges that a driver’s ELD prior to transfer to enforcement to reflect driving time violations comprise ability to access his or her records be consistent with § 395.30. the vast majority of HOS violations. through an ELD without requesting A number of commenters, including ATA recommended that FMCSA allow them from the carrier will vary the Alliance for Driver Safety & carriers to correct them, unhindered by depending on the ELD system Security, Knight, and J.B. Hunt, stated the need to seek driver approval, would employed. In some cases, immediate that employers should not be held more efficiently help both carriers and access is limited to the 7 previous days. responsible if a driver makes a false or authorized safety officials focus on Thus, we did not prescribe an exact inaccurate entry onto an ELD and those comparatively few discrepancies time during which a driver could refuses to change the entry when the that reflect material fraud (i.e., false independently access the records. If the employer requests it be done. Knight logs) and driving time violations. driver cannot independently access the asked whether a carrier can force a J.B. Hunt wrote that the final rule records, the motor carrier must provide driver to make an edit when it is clear should clearly say that corrective action a means of access on request. However, the driver failed to log something taken by a carrier against a driver for the right of access is limited to a 6- properly. Knight wrote that, though the false entries is not harassment. BigRoad Inc. (BigRoad) stated that, month period, consistent with the time carrier is attempting to get the driver to although section 4.3.2.8.2 (2) allows for period during which a motor carrier comply with the rules, the driver may the correction of errors related to team must retain drivers’ RODS. be able circumvent compliance and The SNPRM proposed a single data make a false allegation that the carrier driver switching, it does not allow for format that applies to all the data is ‘‘coercing’’ him or her. Knight the correction of errors commonly found elements and the file format. This is believed that FMCSA ought to allow in slip-seat operations, where drivers do adopted in today’s rule. The ELD data carriers to make edits and allow the not always drive the same truck each file output will not vary dependent on driver to either approve or not approve day. In such operations, drivers occasionally forget to sign out when the ELD used. The data output is a them when made by the carrier. Knight commented that the rule their shift in the truck ends or forget to comma delimited file that can be easily should clearly allow drivers to edit their sign in when their shift begins. This can imported into Microsoft Excel, Word, ELD records at any time before, during, cause drive time to be incorrectly notepad, or other common tools that a or after having confirmed a record. assigned to the driver who was last driver may access. A driver will also be Knight wrote that FMCSA should allow signed in instead of the current driver able to access her or his ELD records drivers to flag personal conveyance or of the truck, essentially the same type of through either the screen display or a yard moves segments even after they error experienced by team drivers who printout, depending on the design of the occur. Knight believed the most are signed-in incorrectly. ABA stated ELD. common error made with ELDs is that that there was some confusion with G. Drivers’ Control Over RODS drivers forget to change duty status. respect to the SNPRM requirement that Therefore, FMCSA should allow drivers only drivers are able to ‘‘edit’’ their HOS 1. Comments to the 2014 SNPRM to make duty status change designations records. While ABA agreed that drivers Recognizing that ELD data reflect a as edits at any time. Such an allowance should have the ability to revise a duty driver’s data, the proposal required that will better serve drivers and alleviate status designation, it asked whether the any edits made by a motor carrier would concerns about an ELD intruding upon SNPRM meant to allow drivers to revise require the driver’s approval. FMCSA’s an individual’s privacy. records that do not reflect a change in proposal was intended to protect the TCA wrote that employers should be duty status. ABA contended that the integrity of a driver’s records and allowed to make minor edits to correct driver should be allowed to revise only prevent harassment attributable to driver ELD records, limited to instances the duty status designation and that the unilateral changes by motor carriers. that do not pertain to compliance with final rule should reflect that In the SNPRM, FMCSA used the word driving or on-duty time. determination. ‘‘edit’’ to mean a change to an ELD ATA stated that the proposed rule on Schneider National supported the record that does not overwrite the edits will complicate compliance and proposal that the driver must approve original record. A driver may edit and enforcement, and could raise the edits made by the motor carrier to the motor carrier may request edits to potential for fraud. ATA identified ensure accuracy. However, since any electronic RODS. Drivers have a full several problems it perceived as the edit made on a record from more than range of edit abilities and rights over result of requiring driver acceptance of the preceding 8 days will not impact the their own records (except as limited by edits. The commenter wrote that current duty cycle, the requirement for the rule), while a carrier may propose FMCSA must consider what an driver approval should be removed. edits for a driver’s approval or rejection. employer should do if a driver refuses Schneider listed several operational All edits, whether made by a driver or to accept the changes. Similarly, ATA reasons why an edit would be made on the motor carrier, need to be annotated asked what happens if the erroneous a record that is more than 8 days old. to document the reason for the change. record is identified during an internal Roehl Transport stated that the Saucon Technologies asked about review weeks or months after the fact proposed process will complicate drivers editing their logs using a support and the driver cannot be contacted for compliance and enforcement. Allowing system other than the recording device: approval because he has since left the the company to edit a driver’s ELD Specifically, what drivers are permitted company? For these reasons, and record would, they argued, facilitate its to change versus what safety because the carrier is ultimately ability to correct a potential administrators are allowed to change. responsible for maintaining accurate falsification. Roehl Transport wrote that The commenter wrote that the safety records, ATA stated that FMCSA should the motor carrier is ultimately administrator should be advised when permit carriers to make edits. At a responsible for maintaining accurate drivers make corrections to their logs minimum, the Agency should allow RODS and FMCSA should permit motor and have the opportunity to approve the changes that would not disguise driving carriers to make edits to drivers’ RODS. change. XRS stated that FMCSA needs time violations or otherwise make such Verigo commented that the proposal to allow a process for the driver to violations possible. ATA indicated that to allow editing of ODND records does

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not indicate any time limit, or address concept. The ELD reflects the driver’s CFR 386.11(b) or a notice of claim under edits that trigger a violation on RODS, although integrity of the records 49 CFR 386.11(c). subsequent records that have already is both a driver and carrier OOIDA noted that proposed § 390.36 been certified. Verigo believed that the responsibility. The driver certification is requires that harassment complaints be proposal indicated that, when edits, intended, in part, to protect drivers from based upon violations of § 392.3 or part additions, or annotations are necessary, unilateral changes—a factor that drivers 395. It wrote that the statutory provision the driver must use the ELD. identified as contributing to harassment. on harassment is not so limited and the Commenter believed the rule should In fact, the rule prohibits a carrier from SNPRM does not explain or defend this allow editing and recertification of coercing a driver into making a false limitation. In its view, the approach of records outside of the ELD provided all certification. See § 395.30(e) of today’s tying harassment problems to driver other proposed protocols are followed. rule. violations of part 395 or § 392.3 is The IBT supported allowing a driver Edits are permitted of a driver’s flawed. Requiring that driver to edit, enter missing information, or electronic record except as limited by harassment complaints be based upon annotate their ELD record when the the rule’s technical specifications. See regulatory violations creates a giant vehicle is stopped. It was concerned 4.3.2.8.2 of the technical specifications. loophole through which acts of with the motor carrier’s ability to Each edit must be accompanied by an harassment will pass with impunity. It propose changes directly to the driver’s annotation. See § 395.30(b)(2) of today’s also stated that FMCSA has assigned record within the electronic interface rule. However, if the driver was itself a passive role with no duty to because it would create an opportunity unavailable or unwilling to recertify the investigate or take any action on its own for driver coercion and harassment. It record, the proposed edit and and criticized the Agency’s reference to supported the inclusion of edit notes as annotation made by a carrier would alternative remedies. Although OOIDA detailed in the appendix to subpart B of remain as part of the record. The noted that the reference to part 395, section 4: Functional Agency would expect that a carrier and ‘‘productivity’’ was eliminated in MAP– requirements. The IBT proposed that, if driver would ordinarily resolve any 21, it nevertheless criticized the a driver record is changed, the source of disputes in this regard. Changes Agency’s failure to follow the Seventh the change be documented. initiated after the period during which Circuit’s direction that the Agency The IME indicated that any change of records were accessible through the ELD define how ELDs may be used to a driver’s records made by a motor (i.e., minimum of 8 days) would likely monitor driver productivity. It also carrier should require the driver’s be initiated by a carrier; however, driver argued that the statutory requirement to approval. re-certification would still be required. address harassment under 49 U.S.C. The OTA stated that some provision See § 395.30(b)(4) of today’s rule. 31137(a)(2) applies to any electronic needs to be made to allow the carrier to FMCSA recognizes that the need for logging device and is distinct from the correct RODS without the driver’s edits will sometimes arise at a time ELD mandate under section 31137(a)(2). approval. Given the high turnover in the when the driver’s record will no longer OOIDA further suggested that the industry, it is common for a driver to be accessible through the ELD. The Agency defined ELD in a manner so as have moved to another carrier and no process to edit records at this point will to minimize the requirement that the longer be responsive to the carrier vary depending on the ELD system Agency ensure that ELDs do not result attempting to correct the record. used. However, any edit and annotation in harassment. ABA stated that § 386.12, regarding Commenter wrote that even a clear, will still require recertification of that complaints of substantial violations, obvious error could remain unchanged record by the driver. if the driver simply refuses to respond Today’s rule does not specifically requires that a complaint against a to the carrier’s request, resulting in a address the ‘‘slip-seat’’ scenario raised carrier for a ‘‘violation may be filed with false log charge against the company. by BigRoad. However, FMCSA expects the FMCSA Division Administrator for Although PeopleNet thought that the motor carrier to resolve the issue by the State where the incident . . . carriers are better suited to provide proposing edits that would adequately occurred.’’ It questioned whether the comments concerning the handling of complaint may be transferred to the attribute the driving time and provide ‘‘unassigned driver events’’ and making FMCSA Division Administrator for the an annotation describing the corrections to ELD records, it State where the motor carrier is circumstances. In terms of roadside recommended that the final rule provide domiciled. For the small business bus inspections, the rule would not modify some additional guidance on how to operator, ABA commented that the costs current practice where a driver normally manage carrier-initiated corrections that associated with defending any certifies her or his record at the close of the driver opts to reject. Zonar complaint can be substantial. The the day. See § 395.30(b)(2) of today’s recommended adding a section defense would be significantly more rule. addressing the certification of records costly if the carrier is required to hire an for law enforcement. Commenter H. Harassment Complaints out-of-State attorney and bear the costs believed that the driver should be of the proceeding in a State that could 1. Comments to the 2014 SNPRM required to certify the records prior to be thousands of miles away from home. giving them to law enforcement. In In the SNPRM, FMCSA proposed a 2. FMCSA Response addition, law enforcement should allow new complaint process under which a the driver sufficient time to certify his driver who felt that she or he was In mandating the use of ELDs for CMV or her ELD records before a citation is subject to harassment, as defined in the drivers required to keep RODS, given for not having them available. SNPRM, could file a complaint with the Congress embraced ELDs as a tool to FMCSA Division Administrator for the enhance compliance with the HOS 2. FMCSA Response State where the incident is occurring or rules. The statute restricts FMCSA’s use While FMCSA appreciates carrier had occurred. Provided the complaint of ELD-generated data for purposes management concerns about requiring was not deemed frivolous, an unrelated to motor carrier safety driver re-certification of any edits made investigation would result. FMCSA’s enforcement. Thus, in today’s rule the subsequent to the driver’s initial finding of a harassment violation could Agency tied the definition of certification, today’s rule retains this result in a notice of violation under 49 ‘‘harassment’’ to violations of the HOS

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rules set forth in part 395 and a related for the appropriate use of ELDs to systems, and that motor carriers are able regulation, § 392.3, prohibiting carriers improve productivity. FMCSA simply to make informed decisions before from requiring drivers to drive when makes clear that, for the protection of purchasing them. The requirements their ability or alertness is impaired due drivers, productivity measures ensure that drivers have effective to fatigue, illness or other causes that undertaken by carriers cannot be used to recordkeeping systems, which provide compromise safety. harass drivers, as that term is defined in them control over access to their FMCSA believes the effective the regulations. records. The technical specifications enforcement of the harassment The procedures governing the filing of also address, in part, statutory prohibition requires that harassment be a complaint, including with whom the requirements pertaining to prevention of defined by objective criteria. Linking the complaint must be filed, and the harassment, protection of driver definition of harassment to underlying procedures addressing the Agency’s privacy, compliance certification violations of specified FMCSRs will handling of a harassment complaint procedures, and resistance to tampering. enhance the Agency’s ability, through have been modified from those Furthermore, they establish methods for its Division Administrators located proposed in the SNPRM in order to providing authorized safety officials throughout the country, to respond to track the procedures governing with drivers’ ELD data when required. driver harassment complaints filed complaints alleging coercion in a recent 1. Comments to the 2011 NPRM under § 390.36(c) in a consistent manner FMCSA rulemaking (80 FR 74695, and within a reasonable period of time. November 30, 2015). Similarly, the The 2011 NPRM relied entirely upon However, the Agency simply lacks the complaint process for substantial the now-vacated 2010 rule. Though resources necessary to investigate every violations is modified to track, in part, comments were submitted to the 2011 possible circumstance that a driver procedures under the coercion rule. NPRM concerning the technical might consider as harassment. Complaints alleging a substantial specifications, they were out of the OOIDA’s suggestion that the Agency violation can be filed by any person scope of the 2011 proposal, as those defined the term ‘‘ELD’’ to include only through the National Consumer specifications had already been recording functions in order to Complaint Database or with any FMCSA finalized in the April 2010 rule and minimize its obligation to address Division Administrator; the Agency will subsequent amendments to address harassment is without merit. The then refer the complaint to the Division petitions for reconsideration of the rule. Agency’s requirements for an ELD of Administrator it believes is best able to 2. Comments to the 2014 SNPRM limited functionality, which are handle the complaint. consistent with MAP–21’s definition, As further indication of the FMCSA proposed new technical were developed in order to minimize seriousness with which FMCSA’s specifications in the SNPRM, which the cost of required technology. viewed drivers’ harassment concerns, included detailed design and Furthermore, today’s rule addresses the Agency conducted a survey of performance standards for ELDs that ELD-related functionality, other than drivers and motor carriers concerning address statutory requirements. FMCSA recording, to require that ELDs have a their attitudes and experiences related proposed specific standard data formats mute function available during sleeper to harassment and its relationship to and outputs that ELD providers would berth periods. This technical ELDs. FMCSA placed the harassment need to use to transfer, initialize, or specification was adopted directly in survey report in the public docket with upload data between systems or to response to concerns raised by a request for comment, to which OOIDA authorized safety officials. These commenters. subsequently responded. The survey In addition, FMCSA notes that proposed technical specifications are § 390.36 is not the sole remedy available and related comments, which are part of intended to be performance-based, in to drivers who believe they have been the record of this rulemaking, are order to accommodate evolving subjected to harassment. Drivers may discussed in Section XII, L, of this technology and standards, and to afford alternatively seek relief by filing a preamble. ELD providers the flexibility to offer compliant products that meet the needs coercion complaints with FMCSA under I. Matters Outside FMCSA’s Authority § 386.12(c), a process adopted in the of both drivers and motor carriers. In the Several commenters submitted recent coercion rulemaking (80 FR SNPRM, FMCSA asked the following recommendations that would require 74695, November 30, 2015), or by filing questions specifically about new statutory authorities for FMCSA complaints with the Department of interoperability. before action could be taken to address Labor pursuant to 49 U.S.C. 31105, 1. Should FMCSA require that every the issue. For example, commenters depending on the underlying facts. The ELD have the capability to import data suggested changes in methods by which Agency notes that certain examples of produced by other makes and brands of drivers are paid, admissibility of ELD harassment offered by commenters fall ELDs? data in litigation, and further squarely within the realm of labor- 2. To what extent would these protections of ELD data beyond current management relations rather than the additional required capabilities for full law. The Agency will not consider application of the HOS rules and are interoperability increase the cost of the taking actions beyond its current therefore outside the scope of this ELDs and the support systems? authority and will not commit to rulemaking. 3. While full interoperability could The Agency does not address the seeking such authority. lower the cost of switching between distinction between productivity and X. Discussion of Comments Related to ELDs for some motor carriers, are there harassment, because, as part of the the Technical Specifications a large number of motor carriers who MAP–21 legislation, Congress operate or plan to operate with ELDs eliminated the statutory provision A. Performance and Design from more than one vendor? How would expressly permitting carriers to use Specifications full interoperability compare to the ELDs to monitor the productivity of The detailed performance and design proposed level of standardized output? drivers. In light of that revision, we do requirements for ELDs included in If carriers wanted to operate ELDs from not infer congressional intent that the today’s rule ensure that providers are more than one vendor, would this be a Agency establish guidelines in this rule able to develop compliant devices and barrier? Would this issue be impacted

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by the market-share of the ELD PeopleNet requested clarification on The motor carrier and the driver are manufacturer? how to manage data for those drivers responsible for ensuring that all the 4. Would motor carriers and that transition between a compliant RODS information required by the HOS individual drivers have broad-based use AOBRD device and a compliant ELD. rules is available for review by or need for such capability? Is there a Eclipse Software Systems stated that it authorized safety officials at the better way to structure standardized would be useful for any driver to have roadside. If the driver works for output to lower cost or encourage access to non-authenticated driving time multiple employers with multiple ELD flexibility without requiring full so they are aware of it, since it will be or AOBRD systems that are not interoperability? displayed to roadside inspectors. It compatible (e.g., the data file from one Providers raised questions about asked for a clarification that displaying system cannot be uploaded into the many of the technical specifications and co-driver names (perhaps automatically other system), the driver must either suggested changes. NTSB asked FMCSA from other driver’s data on the ELD) is manually enter the missing duty status to consider adding crash survivability allowed. information or provide a printout from for ELD and ELD data. 3. FMCSA Response the other system so that an accurate EROAD Inc. (EROAD) stated that the accounting of the duty status for the easiest and fairest way for FMCSA to The Agency is not requiring crash current and previous 7 days is available survivability standards for ELDs because provide standards that guarantee high for authorized safety officials. of the costs involved. Crash performance is to use general hardware survivability is a complicated and B. Specific Performance Requirements and software technical and security expensive requirement, and would standards. It recommended a 1. Comments to the SNPRM mean that the ELD has to withstand requirement for ELD providers to meet high impact or crash forces and be water Commenters had comments or appropriate FIPS, Common Criteria, or resistant and withstand exposure to questions on specific design elements in other equivalent standards. open flames for some period of time. the proposed appendix to part 395. BigRoad stated that codifying the FMCSA does not believe this is technical specifications, as part of the Comments Requesting New necessary. Requirements regulatory requirements, is undesirable FMCSA agrees that some level of because the regulatory process would standardization is necessary. Whenever FedEx stated that ELDs should be impede the development of the possible, FMCSA used NIST, or other programmed to acknowledge that a technical specifications. Instead, commonly available technical driver is using the 100-air-mile FMCSA should remove technical standards, including those incorporated exception. While taking the exception, specifications from the regulatory by reference in today’s rule in § 395.38, the driver should only need to enter requirements and create a technical Incorporation by Reference. start time and end time into the ELD. standards open working group FMCSA has elected to codify the Omnitracs, LLC (Omnitracs) asked for a consisting of industry and government technical specification standards in the definition of minimum duty status representatives that is able to work appendix to part 395 in today’s rule duration. Paper logs are to a granularity collaboratively through the rather than establish a new working of 15 minutes, but there is no interoperability issues. BigRoad was group. Though FMCSA acknowledges specification for RODS recorded by the concerned that the complexity of the that including the technical ELD. Omnitracs believed the customer ELD specifications, particularly in requirements in the regulations makes should be able to configure the duration. support of roadside inspection changing them more difficult, FMCSA CVSA and the United Motorcoach information transfer, would result in believes this is the best way to provide Association (UMA) stated that the ELD ELD systems that are more expensive transparency and ensure that all should alert a driver when he or she is and less reliable than necessary to meet interested parties are aware of the approaching the HOS limits. the requirements of MAP–21. requirements and any proposed changes Number of Required Features Interoperability issues between ELD to the standards. FMCSA notes that providers and roadside inspection adopting technical specifications by The IFDA recommended eliminating systems could result in an unintended regulation is the only way to make them the requirement for a single-step bias toward drivers producing printed binding. Additionally, though the interface and graphic display or paper logs during an inspection. Agency did not create a workgroup, the printout. The commenter wrote that Providing simpler roadside data transfer MCSAC subcommittee, which included there is not a sufficient safety benefit to options, with specific requirements for members from the ELD technical justify the 60-minute requirement for both ELD providers and authorized community, gave a recommendation to recording the location, communications safety officials, would allow technology FMCSA on task 11–04, which the methods, and indications of sensor providers to deploy the necessary Agency considered in lieu of a failure, which it wrote are not currently systems more quickly. workgroup’s recommendations. standard technology. Continental stated that the ELD Today’s rule requires standardized XRS stated that FMCSA needs to regulation and associated standards output and standardized data sets. clarify why the engine hours are a should include a clear security FMCSA has decided not to require full requirement. FMCSA should identify specification, using standard IT industry interoperability between all ELDs. what other methods would accurately processes and endorsed by the National Although full interoperability would acquire engine hours without an ECM Institute of Standards and Technology have some benefits, it would also be available. (NIST) and standardized interfaces. This complicated and costly. FMCSA ATA raised concerns about the would assist with the identification of believes that requiring standardized requirement to synchronize devices to drivers, the transmission of drivers’ data data output and requiring that drivers Coordinated Universal Time (UCT) from one vehicle to another and easy have access to their own records will periodically and to ensure that a access to and downloading of data by achieve some of the goals of the device’s deviation from UCT not exceed enforcement personnel and vehicle commenters advocating for full 10 minutes at any point in time. To operators. interoperability. ensure such synchronization will

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require cell or satellite service useful, and can be met at a reasonable other data contained on the ELD. A (depending on the device) and such cost. FMCSA has been careful to record of engine hours, when compared service is not always available. ATA consider the cost of developing new with the ECM odometer readings, also questioned if ELDs would be able components of an ELD, and has verifies the accuracy of periods other to produce the volume of data that purposefully set standards that can be than drive time. Because today’s rule is FMCSA proposes (e.g., last 6 months’ met by re-programming many existing not applicable to vehicles older than records, all drivers who previously used devices with little cost to the providers. model year 2000, and ELD providers can the device). ATA believed that such work-around vehicles using OBD–II, Requesting New Requirements requirements will cause devices to need which might not capture engine hours, large memory capacity that will add to FMCSA does not require ELDs to the concern about engines without cost, reduce design flexibility, and accommodate any statuses other than ECMs should be eliminated. However, ultimately impact the ability of some those that are currently required to should a driver of a CMV with a non- existing hardware to be upgraded to complete paper RODS, including ECM engine wish to install an ELD, meet new specifications. ATA excepted and exempted statuses. Appendix B sections 4.2(b) and recommended limiting the requirement However, section 4.3.3.1.2. (c) states 4.3.1.2(b) provide specifications for an to the same level of detail that drivers that an exemption must be proactively ELD when there is no ECM or ECM currently must provide during roadside configured for an applicable driver connectivity. inspections. account by the motor carrier. The ELD With current technology, it should be With the requirement for ELD records must prompt the motor carrier to rare for an ELD’s time to drift more than to resolve latitude and longitude to a annotate the record and provide an 10 minutes. In addition, the technical place name, as well as the distance and explanation for the configuration of the specifications require the ELD to (1) direction to the place name, Verigo exemption. periodically cross-check its compliance stated that it is questionable why FMCSA does not require a minimum with the requirement specified in locations need to be resolved to an duty status duration. The ELD will section 4.3.1.5 of the Appendix with accuracy of two decimal places. This capture all duty statuses entered; there respect to an accurate external UTC level of granularity does not appear to is no minimum amount of time these source and (2) record a timing provide a higher level of safety and is statuses must be engaged. While compliance malfunction when it can no inconsistent with the accuracy in use longstanding industry and enforcement longer meet the underlying compliance today. The 10-mile accuracy of single practices may have relied upon requirement. decimal coordinates is consistent with minimum intervals of 15 minutes in the FMCSA clarifies that the ELD in the the distance that could reasonably be handwritten RODS, the ELD provides CMV only needs to retain the data for traveled within the 15-minute interval for a more accurate accounting of the current 24 hour period and the in use. drivers’ time. This should not be previous 7 consecutive days. Carrier (or Eclipse Software Systems stated that construed to be an indicator that the private driver) record keeping systems the transaction numbering system, along activities that are electronically could retain more data for the purposes with the odometer capture (vehicle recorded as less than 15 minutes are of historical data storage. FMCSA does miles) provides very strong security that suspect, only that the time actually not prohibit any ELD from retaining makes tampering extremely difficult. required to complete the task may be more data than 8 days, but it is not Adding engine hours, ignition on/off less that what had been traditionally required. The carrier is required to keep and VIN detection add very little noted in the paper RODS. data for 6 months in case of an FMCSA additional security. Another issue FMCSA allows, but does not require, inspection. This information can be kept Eclipse asked FMCSA to consider is that any notification of the driver when they on the device itself or in the carrier’s the serial and CAN buses of ECMs are nearing their HOS limits. While an office. These electronic files are not broadcast the odometer and wheel ELD will automatically record on-duty large. FMCSA estimates that 6 months speed without intervention from an driving time, a driver is still responsible of data, for one ELD, would not require ELD. The ELD can sit in ‘‘listen mode’’ to record other duty statuses based on more than 10 MB of storage. Therefore, and obtain this information. Conversely, the driver’s actual work time. in this rule, FMCSA does not reduce the to get engine hours and VIN, the ELD data set that needs to be retained. must transmit on the ECM bus, and send Number of Required Features FMCSA needs to capture latitude and requests for this information. Eclipse FMCSA agrees that data transmission longitude because it is more reliable for commented that it was aware of some is complex, and roadside enforcement computers to process than place names. EOBRs improperly transmitting on and review will likely play a large role, However, FMCSA also needs place vehicle buses, causing erratic behavior especially in the transition phase of the names to allow drivers to verify that the on the electrical bus. Given that an ELD implementation of today’s rule. For this location is correct and safety officials to mandate is likely to draw lots of new reason, FMCSA has standardized the recognize the location quickly. Data providers to this market (who may be information on the printout and the collected in addition to odometer, such inexperienced with ECM interfacing), it display screen to contain the same data as engine hours, are necessary as a cross seems safer that ELD providers operate set. FMCSA believes that the check to verify that data has not been in ‘‘listen only’’ mode, where they are modifications made from the SNPRM in manipulated. Location resolved to an less likely to interfere with vehicle today’s rule to require a standardized accuracy of two decimal places when operation by broadcasting on the engine backup of a display or printout will drivers are on-duty driving provides a bus. increase the ease of users. clear history of where the driver and FMCSA acknowledges the vehicle have been. In today’s rule, 2. FMCSA Response commenter’s concerns about 60-minute FMCSA does not require an ELD to be FMCSA is aware that there is no location but the Agency believes ELD able to communicate with the motor current device on the market that meets devices can easily be programmed to carrier. FMCSA disagrees that the every standard in today’s rule. However, record at 60 minute intervals. location information does not have a the intent of this rule is to set a standard FMCSA believes it is necessary to safety reason; location information will that the Agency believes is secure, record engine hours, as a check with the make falsification of HOS records more

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difficult. Additionally, FMCSA believes devices that are AOBRD compliant and novice user or rogue script programmer this level of specificity can provide moving to an ELD have been employing from easily modifying the data and accurate time information, and that this security measures through the use of gaming the system. The checksum is not a difficult level of location Mobile Device Management software, algorithms are sufficiently robust to information to meet. which provides for security of the prevent a novice user from simple data In response to concerns about device. manipulation. Although MD5 is a well- improper transmittal, the industry will BigRoad stated that the series of known and more robust checksum be driven by customer requirements to checksums that are required on event algorithm, in this instance it is no better provide safe and non-interfering logs, output file lines, and the entire than the simple scheme provided in this connectivity of the ELDs to the engine output file itself are calculated in a rule. Someone changing the data could ECM or ECM connectivity. Additionally, manner that would be trivial to simply apply the MD5 checksum to the use of industry standards in the recalculate should any data be altered. each line as there is no independent regulation, and the requirement that However, in proposed sections 7.1.20, source to verify its accuracy. The MD5 ELD providers register and certify their 7.1.26, and 7.1.31 (7.21, 7.27, and 7.32 checksum has the additional ELDs on FMCSA’s Web site, should in this rule), these values have the disadvantage of adding significantly reduce the potential for this type of stated purpose to identify cases where more data to each line, thus increasing issue. an ELD file or event record may have the size of the overall file. been inappropriately modified after its C. Security original creation. BigRoad stated that, D. External Operating Factors and Failure Rate of ELDs 1. Comments to the 2014 SNPRM for security against purposeful tampering, only a cryptographically 1. Comments to the 2014 SNPRM The SNPRM proposed incorporating robust signature of the data in question by reference several industry standards is effective in practice. The SNPRM did not address the effect for privacy and encryption including Omnitracs also questioned the value of external operating factors, such as NIST standards. of these and stated that as proposed they dirt or vibration, on the failure rate of Continental stated that ELDs should provide no security. PeopleNet ELDs. be tested and certified to comply with recommended the use of a proven The National Ground Water security standards by independent industry standard, MD5 Hash. Association stated that FMCSA should laboratories that follow processes ensure that providers understood that 2. FMCSA Response endorsed by NIST. In the absence of a ELDs had to perform when subjected to precise requirement for a specific FMCSA follows all DOT Security vibration from heavy equipment. The tamper resistance level, FMCSA should guidelines which includes NIST Association of General Contractors at least ensure that ELD software cannot standards for access to any FMCSA stated that the off-road conditions be accessed and modified by end users. system or network. In this rule, FMCSA construction vehicles operate under As drafted, Continental stated the rule has expressly prohibited any may be problematic for ELDs. Its may lead to the proliferation of hacked modification at the user level. FMCSA members indicate at least a 10 percent or cloned apps for smartphones and believes that the security standards of failure rate. tablets that exactly mimic the displays ELDs have appropriately balanced of compliant systems. As a minimum industry standards, privacy, the need for 2. FMCSA Response security requirement, FMCSA should accurate HOS monitoring, and the cost In today’s rule, FMCSA continues to only allow ELDs that prohibit user of security measures. FMCSA notes that allow the marketplace to address access to the software environment on it has only established minimally developing roadworthy ELDs. As with the device. The provider of the ELD compliant standards in this rule, and other electronic device manufacturers should demonstrate during the there could be a market for more (mobile phones and laptop computers certification process that the software security features on an ELD. ELD for example), the market should drive environment on the device cannot be providers are not prohibited from using ELD providers to respond to CMV easily accessed and modified by the end additional security measures, so long as operating situations where a high level user. While the industry has shown an the data can still be transferred to of durability is required. CMVs that interest in using smart devices for authorized safety officials as required by operate only on the highway may not operational management, the current the today’s rule. need the robustness of design that the market penetration of smart device- In addition, the commenter’s concern construction and utility industries based ELDs is very low. Therefore, there about mobile devices is misplaced. require. will be only a minimal financial impact Security on mobile devices is well- to the industry by prohibiting open- understood. Banks, governments, and E. Automatic Duty Status software devices. As the number and retailers all provide apps which require 1. Comments to the 2014 SNPRM sophistication of tampering attempts security. There is no reason to believe will grow with time, the overall tamper that consumer mobile devices cannot be If the driver’s duty status is Driving, resistance level could be significantly an adequate platform for ELDs. FMCSA an ELD would only have allowed the enhanced by requiring that the data believes the specifications and privacy driver who is operating the CMV to delivered by ELDs be digitally signed. standards and protocols are sufficient to change the driver’s duty status to Continental noted that FMCSA proposes respond to reasonable concerns about another duty status. A stopped vehicle to require that ELDs provide data in the hackers. would have to maintain zero (0) miles format of an electronic file. Lacking FMCSA does not prohibit the use of per hour speed to be considered enforceable security requirements, Mobile Device Management software, stationary for purposes of information however, it will be extremely easy to but believes it is too costly to include as entry into an ELD. Additionally, an ELD perform undetectable modifications on a minimum ELD specification. would have to switch to driving mode those files. The intent of the checksums is to automatically once the vehicle is XRS stated that many suppliers of provide a simple method of detecting moving at up to a set speed threshold of AOBRD portable devices or handheld data manipulation to help prevent a 5 miles per hour.

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XRS stated that FMCSA should (proposed section 4.3.1.6. of the is no prohibition on having more indicate whether the drive time should SNPRM). The ELD must obtain and precise information. be set back to the beginning of the on record this information without any G. Special Driving Categories duty period when 5 minutes has external input or interference from a expired. Zonar stated that the safety, motor carrier, driver, or any other 1. Comments to the 2014 SNPRM effectiveness, efficiency, and reliability person. CMV position measurement The SNPRM proposed to add a ± of the ELD and FMS will be must be accurate to 0.5 mile of requirement for the ELD to provide the significantly limited by not allowing absolute position of the CMV when an capability for a driver to indicate the automatic duty-status changes when the ELD measures a valid latitude/longitude beginning and end of two specific system finds specific criteria for an coordinate value. categories, namely, personal use of a event have been met. Zonar commented FMCSA proposed that position CMV and yard moves, as allowed by the that automatic changes include information be obtained in or converted motor carrier. In these cases, the CMV providing the driver the ability to into standard signed latitude and may be in motion but a driver is not change the event; if the driver does not longitude values and must be expressed necessarily in a ‘‘driving’’ duty status. respond, then the automatic duty status as decimal degrees to hundreds of a This would record the necessary occurs. Automatic duty status records degree precision (i.e., a decimal point information in a consistent manner for must include an annotation to describe and two decimal places). the use of drivers, motor carriers, and the system action taken, so the original XRS stated that FMCSA needs to authorized safety officials. record is retained. clarify the accuracy of the GPS as to In the data structures as defined in the XRS stated that FMCSA should rounding up or truncating on the 1- SNPRM, XRS saw no allowance for reconsider ‘‘Other Automatic Duty- decimal and 2-decimal accuracy. identification for items such as adverse Status Setting Actions Prohibited’’ since Eclipse Software Systems stated that conditions, or 16-hour short haul the driver will have the ability to edit FMCSA is requiring that the ELD exemption and requested guidance on and annotate other changes. Section determine date, time, and location how these should be identified or 395.2 (definition of ‘‘on-duty time’’) ‘‘[w]ithout allowing external input or indicated in the files. Zonar asked for allows a co-driver to be off duty for up interference.’’ Given that this data clarification on the special driving to 2 hours in the passenger seat of a comes from GPS, and GPS can be categories: How does FMCSA expect moving vehicle before or after at least 8 interfered with (by obscuring the GPS this to be displayed in ‘‘Off-Duty’’ and hours in the sleeper berth and then the antenna, for example), the wording ‘‘On-Duty Not Driving’’ or is there no co-driver must revert to on duty. should be changed to reflect that the requirement? Allowing an automatic duty status carrier, driver, or other individuals are While Omnitracs agreed with change from off to on duty when the 2 not allowed to set the date, time, and resetting the special driving situation to hours expires, would make ELD records location manually. Eclipse commented ‘‘none’’ if the ELD or CMV’s engine goes more accurate and avoid additional that other parts of the SNPRM already through a power off cycle, it suggested transactions by the driver without make it clear that interfering with GPS that the same confirmation be allowed compromising safety. is a violation, but the responsibility lies during yard driving that is allowed for authorized personal use of the CMV. 2. FMCSA Response with the individual, not the ELD provider. This would enable the driver to turn off FMCSA purposefully did not require Zonar asked for guidance on the the engine when connecting or drive time to set back automatically. maximum characteristics to be disconnecting a trailer when operating FMCSA believes that the driver of a displayed. A customer may choose to within a company’s facility without the CMV has a responsibility to ensure the have more precise information than 3 to requirement to re-enter the annotation accuracy of his or her own HOS records. 6 or 3 to 7 characters. As an FMS has of yard driving each time the engine FMCSA considers that, in most cases, reports and tools that are supported by goes through a power cycle. status changes should be directly linked the precise GPS location of the vehicle, 2. FMCSA Response to an action taken by a driver. this will have a major impact on the FMCSA does not require special An ELD must prompt the driver to system. input information into the ELD only identification to be built into an ELD for when the CMV is stationary and the 2. FMCSA Response specific exceptions or adverse condition status. FMCSA expects drivers and driver’s duty status is not on-duty Geo-location rounding to a 1-decimal driving, except for the automatic setting motor carriers to use the annotation (approximately within a 10 mile radius) ability on the ELD to record these of duty status to ODND. The driver still will provide sufficient granularity to the has the option to edit and switch that statuses. data without providing an excessive Today’s rule permits the driver to time after it has elapsed, as long as it is amount of specificity; this granularity not driving time. Limited editing rights, indicate the beginning and end of yard remains of limited specificity when moves and personal conveyance, as coupled with the ability of the driver reduced to 2-decimal accuracy. Because and motor carrier to annotate, should allowed by the motor carrier. All other the date, time, and location will be special driving categories, such as ensure that records are accurate. determined by the ELD without adverse driving conditions (§ 395.1(b)) FMCSA does not believe this will result modification by the driver, motor or oilfield operations (§ 395.1(d)), would in an unreasonable number of edits or carrier, or any other individual, any be annotated by the driver, similar to complicated data for enforcement. alterations to these records would be the way they are now. F. CMV Position considered tampering with an ELD The Agency feels that the allowance under § 395.8(e)(2). of multiple power off cycles would not 1. Comments to the 2014 SNPRM The output values for GPS location for provide a substantive reduction in The SNPRM provided that an ELD the purpose of enforcement and inputs required by the driver during must have the capability to compliance to the ELD rule may be 3 to yard moves. In addition, this may create automatically determine the position of 6 characters. If a carrier has more a potential for misuse of the off duty the CMV in standard latitude/longitude character requirements for its FMS there yard-move status.

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H. Data Automatically Recorded moving at a set speed threshold of up to recertification of the record by the 5 miles per hour. driver, the Agency acknowledges that 1. Comments to the 2014 SNPRM there will be instances where a driver is I. Driver’s Annotation/Edits of Records The SNPRM proposed that the ELD no longer available at the time of an would automatically record the 1. Comments to the 2014 SNPRM edit. Although the edit and annotation following data elements: (1) Date; (2) The SNPRM proposed that a driver would lack the required certification, time; (3) CMV geographic location may edit and a motor carrier may retaining the carrier edits may provide information; (4) engine hours; (5) request edits to electronic RODS. All a more complete picture of what vehicle miles; (6) driver or edits would have to be annotated to occurred. authenticated user identification data; document the reason for the change. J. Driver’s Data Transfer Initiation Input (7) vehicle identification data; and (8) The SNPRM did not allow any driving motor carrier identification data. time to be edited into non-driving time. 1. Comments to the 2014 SNPRM Eclipse Software Systems stated that BigRoad noted that the annotation The rule indicates that a screen icon it had concerns that items (6) driver, requires a 4-character minimum. Its must be clearly marked and visible and (8) motor carrier information cannot database of logs includes hundreds of when the vehicle is stopped. Verigo truly be ‘‘automatically recorded.’’ The thousands of 3-letter notes that are asked for clarification regarding the ELD can make note of the current driver meaningful. It stated that the restriction required visibility of this icon at all and carrier, but these values have been should be removed. Omnitracs stated times when the vehicle is stopped. manually entered or selected by a that the term ‘‘source data streams’’ is 2. FMCSA Response human at some point. Unlike items 1 too vague and should be changed to through 5, and 7, they are not provided ‘‘recorded data.’’ Omnitracs The icon is a function that allows the by external sensors. recommended the process outlined in driver to easily transfer data at roadside. Inthinc Technology Solutions, Inc. sections 4.3.2.8.1 and in 4.4.4.2 be The supported single-step data transfer (inthinc) stated that a driver may log out amended to track only the original and initiation mechanism (such as a switch and then turn off the engine. It asked if the driver-approved final edit since they or an icon on a touch-screen display) engine shutdown should be recorded on comprise the final record set. It also must be clearly marked and visible to the ELD record even though the driver stated that the requirements regarding the driver when the vehicle is stopped is logged out. edits to driver ELD records do not and data transfer is required. We expect Schneider requested confirmation that sufficiently detail that only the original that the ELD makers will meet the in § 395.32(a), where the words ‘‘as soon and final edits are to be maintained and regulation requirements by as the vehicle is in motion’’ occur, that are too restrictive regarding incorporating user friendly and useful the definition of ‘motion’ is the one automatically recorded drive time edits. features to maintain market share. found in the appendix, in section PeopleNet stated that the specifications K. ELD Data File 4.3.1.2. in section 4.4.1.2 mean that if the driver 1. Comments to the 2014 SNPRM 2. FMCSA Response is in Driving, gets to the destination, and turns off the ignition, he will remain in In the SNPRM, FMCSA provided that Today’s rule provides that driver and Driving, which is incorrect, but the ELD an ELD must have the capability to motor carrier information will be the cannot reduce drive time. generate an electronic file output, responsibility of the motor carrier, as compliant with the format described in 2. FMCSA Response reflected in § 395.22. After a driver’s section 4.8.2, to facilitate the transfer, unique login to the ELD, this The term ‘‘source data streams’’ has a processing and standardized display of information will be available to the ELD broader meaning than ‘‘recorded data.’’ ELD data sets on the authorized safety and will be recorded by the ELD, with It includes all the information, recorded officials’ computing environments. all the other data elements, at each or not, that the ELD receives. FMCSA FMCSA required that all output files be change of duty status and at does not find that there is a reason to standardized on ELDs according to intermediate recording times. include 3-letter notes as acceptable American Standard Code for With regard to comments about the annotations, and continues to require 4- Information Interchange (ASCII), which engine status, FMCSA notes the ELD character minimum codes. The Agency the Agency proposed incorporating by will automatically capture the engine on thinks that a code with a minimum of reference. and engine off activities, including the four characters will provide better Zonar asked where the output file date, time, and location of these quality information and specificity. comment should be stored—within the activities. FMCSA expects the driver to When the duty status is set to driving, driver records on the ELD, just in the enter a new duty status before turning and the CMV has not been in-motion for support system, or both? If stored on the the vehicle off. For example, if the 5 consecutive minutes, the ELD must ELD only, when the ELD records are driver intends to remain on duty, then prompt the driver to confirm continued purged after the 7 or 8 days they are the driver would enter that information driving status or enter the proper duty required to be retained, should it then and then turn the vehicle off. If the status. If the driver does not respond to be stored within the support system? driver plans to switch from driving time the ELD prompt within one-minute, the Omnitracs recommended replacing to a sleeper-berth period, the new duty ELD must automatically switch the duty the word ‘‘ELD’’ in section 4.8.2 with status would be entered before the status to ODND. The time thresholds for the phrase, ‘‘ELD or a support system vehicle is shut down. The precision of purposes of this section must not be used in conjunction with ELDs,’’ the the data collected by an ELD is not configurable. Accordingly, the driver same language used in section 4.9.2. intended to override the practical status will most likely change to ODND The commenter believed that use of the sequence of events needed to reduce to under the PeopleNet scenario. additional term would allow for closer the greatest extent possible annotations FMCSA declines to limit the record to alignment within the rules. Omnitracs and corrections. only the original record and driver- also stated that there is nothing in the The ELD will indicate the vehicle is approved edits. While an edit by a output file standard that specifies how in motion once the vehicle begins motor carrier normally requires to handle non-ASCII character sets such

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as special characters that may be used that using XML along with a formal XSD suggested needs, including that for either by Canadian cities/provinces or schema is beneficial when trying to Table 7, Event Type 4. In the respective even in driver names. ensure interoperability between section, only Event code is necessary as In section 4.8.2.1 of the appendix to disparate systems and would reduce the event type is implied by the section. part 395, the SNPRM proposed that the number of file format incompatibility Field values including inline commas or ELD must produce a standard ELD data issues when transferring data between characters can be controlled for or output file for transfer purposes, systems. pre-processed by the ELD provider. regardless of the particular database BigRoad stated that the ELD data file FMCSA has updated section 4.8.2.1. to architecture used for recording the ELD specifications are not explicit about how accommodate a comma or carriage events in electronic format. This ELD to display and transfer data from drivers return by adding: ‘‘(3) Any field value data output file must be generated that produce records on multiple ELDs. that may contain comma (‘‘,’’) or according to the standard specified in The requirements to display multi-day carriage return () must be replaced section 4.8.2.1. data imply that data must be aggregated with a semicolon (‘;’) before generating Omnitracs stated that all of the across all ELDs the driver uses. None of the compliant CSV output file.’’ ‘‘supporting’’ elements (e.g. annotations, the ELD data files contains an identifier The concern about HOS records from certifications, malfunctions, etc.) for the specific ELD that created the multiple ELDs is appropriate. FMCSA reference the event sequence ID number record, so if the records from multiple added data and time stamp fields to as the only means to associate to the ELDs are aggregated the event sequence annotations to allow an improved actual driver duty change event (refer to number ranges throughout the file could method of disambiguation. There may 4.8.2.1.5, which contains the format for be discontinuous. If the intention is to still be rare situations where one or Event annotations or comments). If a produce data files containing ELD data more drivers could have data in driver’s duty cycle consists of data aggregated across several ELDs, BigRoad multiple ELDs that get combined into a recorded from multiple ELDs, these believed adding an ELD identifier single file having identical event IDs sequence IDs may overlap and may not would mean that each separate ELD and slightly unsynchronized time be unique on the current ELD. It could be easily disambiguated. stamps. The probability of this recommended that a secondary 2. FMCSA Response occurring is low, but not zero, and the reference to the original duty status, consequences are minimal. An ELD In today’s rule, section 4.8.2 is largely which could include an ELD unique Identifier data element that BigRoad the same as proposed. Some changes identifier, or even a date/time reference, mentions is already defined in the rule. be used. Omnitracs requested that there have been made to accommodate While today’s rule does not include be further clarification on how to handle comments and to clarify the rule. In requirements concerning compatibility event sequence IDs when data on the response to the comment asking how of files between ELD systems or the the output file comment should be ELD are a mix of data that have been ability to upload drivers’ duty status stored, it must be recorded in the output recorded from different ELDs. The files from multiple systems, there is file and transferred to roadside current language has no provision on nothing in the rule that prevents enforcement or inspectors. All captured how to handle data from different ELDs collaboration among the providers to elements from the output file must be when there could be a sequence produce compatible products. In the retained by the carrier for 6 months. conflict. absence of a compatibility standard, if a Inthinc recommended that UTF–8 be FMCSA understands that some driver’s duty cycle consists of data used for output rather than ASCII. It capabilities of an ELD may not be recorded from multiple ELDs, then the also asked for examples of how output located on the same physical device, or records will be in multiple files. If the code should be parsed. even in the CMV, but rather in a support ELD is set to combine them, then a BigRoad stated that the comma- system. FMCSA has provided flexibility provider could opt to use an additional separated format described in the in this rule for all provider types and field as a database element in order to SNPRM is not based on any their respective ELDs. contemporary standard for structured FMCSA requires that all information keep them separated. In today’s rule, data and already fails to accommodate in the output file be standardized and FMCSA has added a secondary some data requirements fully (see Table only include ASCII characters. ASCII is reference to the original duty status to 6, Event Type 4). BigRoad wrote the a widely available standard within the include a date and time field. There are format also fails to account for field United States, and is appropriate for the multiple methods to handle combining values that might include inline data required. Although ASCII does not data from more than one source and commas or characters. The provide for special characters, FMCSA FMCSA has purposely left this open for commenter also noted that a file format feels that identification of proper names the innovation and flexibility of ELD based on standards like extensible and cities can be clear without the providers. markup language (XML) would allow insertion special characters. L. Engine Power Up and Shut Down for more flexibility for future changes The ELD technology option for any and could be paired with any character data transfers will require that the 1. Comments to the 2014 SNPRM set encoding, including Unicode, to standard ELD CSV data file outlined in The SNPRM proposed that an ignition allow any character data to be captured part 395 would be packaged into XML power on cycle refers to the engine correctly without loss of precision. format. FMCSA will provide and power sequence changing from ‘‘off to BigRoad wrote that to restrict future manage ELD XML schema and all on and then off.’’ This refers to a flexibility of the data format to support related instructions outlined in continuous period when a CMV’s a minority of devices seems guidance, ‘‘ELD Interface Control engine is powered. shortsighted. Document (ICD),’’ to be placed on its Omnitracs asked if, since CMV Since ELD data that are transmitted to Third Party Development site (3PDP). ignition can be in the ‘‘on’’ position FMCSA Web services are formatted as There is no prohibition on using an without the engine running, the ELD XML, BigRoad believed that XML XML format internally. However, ELD must capture when the ignition is in the should be used as the format for all output files have a standardized format. on position without the engine running. transmission options. BigRoad wrote The format method accounts for the The same commenter recommended

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that the 1-minute time for power up be a later point and the system will be fully consistent connectivity expected of the relaxed to 3 minutes to allow for a cold functional. ELD product. boot situation. Zonar asked what XRS wanted FMCSA to clarify the 30 In regards to the concern about the constitutes ‘‘Ignition power on cycle’’ minutes mentioned in this section. This aggregate 30 minute period in a 24 hour when connected to a hybrid truck? A could easily exceed 30 minutes in a 24 period, FMCSA believes that this is a hybrid truck will not produce a RPM of -hour period especially with many generous standard for HOS compliance. greater than 0 until driven. jurisdictions around the country If a driver is concerned about this malfunction, there are several ways, 2. FMCSA Response prohibiting CMV drivers from idling their engines. There is the possibility including a simple pre-boot, to ensure The technical specification included a that a vehicle bus under particular stress that the ELD is ready to receive data as capture for when the engine goes from may not respond for more than 5 soon as the ECM or ECM connection on to off, but the intended data capture seconds. Clarification on the 24-hour sends it. Additionally, when an ELD was for when the driver intended to period as well as the aggregate of the 30 displays a malfunction, the authorized drive the CMV. Though propulsion minutes against all profiles may be safety official should be able to see what variations can be defined, FMCSA difficult or give false errors. the problem is and take that into wants the specification to capture when Verigo noted that, given the wide consideration. There would be enough the CMV is put into a state where it can variety of computer processor speeds data in this instance to see what the be driven. Likewise, ignition on/engine and other sequencing events that may be issue was, and what the real driving on for a hybrid vehicle will be the status encountered, the 5-second limit may time is. When the engine is not of vehicle ready to drive—the introduce a significantly higher level of powered, the ELD does not have to equivalent to ‘‘engine on’’ for an error reporting than necessary to capture data. The 30 minutes verifies internal combustion engine. FMCSA promote safe operation. There have been that additional miles and movement has continues to require the capture of the several instances where the OBD–II not taken place in the 24 hour period. engine on data. interface does not become active when FMCSA clarifies that the ECM data or FMCSA does not accept the the ignition is switched on, but only ECM connectivity data must only be suggestion to relax the power up status after the vehicle is started. Without captured when the engine is powered, to 3 minutes because the Agency additional conditions to be checked, it but the ELD is not prohibited from believes that 1 minute is sufficient. Any seems likely that there will be invalid recording information, if desired, when cold boot event records that would be logs of engine sync failure for these the engine is off. If the CMV is older captured could be annotated, or would vehicles (i.e. driver turns on ignition than model year 2000, then the driver is be clear from the type of activity that and listens to the radio). It would be not required to use an ELD. However, if occurred. A 3 minute cold start would useful if the Engine Sync Compliance that driver is voluntarily using an ELD be a rare occasion, and would be Monitoring is not required to log a in a vehicle older than model year 2000 captured as a diagnostic event, not as a failure until after engine ignition is with the connections required in section fault, and should not impact driving detected and motion is detected (via 4 of the appendix, then the interface time. GPS) and vehicle data are not available. should become active when the engine M. Engine Synchronization Compliance Eclipse Software Systems stated is on, not just when the switch is turned Monitoring engine synchronization must be on. functional for all but 30 minutes in a 24- N. Engine Miles 1. Comments to the 2014 SNPRM hour period. If it is not, an engine The SNPRM proposed that an ELD synchronization compliance fault must 1. Comments to the 2014 SNPRM monitor the data it receives from the be logged. This is problematic in that The SNPRM proposed that engine engine ECM or alternative sources to the engine bus is not always miles be retrieved from an ECM if the record history to identify instances and operational. When the engine is not CMV had an ECM. If a vehicle was older durations of its non-compliance with powered and a cab door is not open, than model year 2000, and did not have the ELD engine synchronization, and there is usually no activity on the an ECM, then the vehicle miles would establish a link to the ECM, as well as engine bus. This is indistinguishable have to be derived. set an engine synchronization from the wires to the engine bus being Zonar stated that there are multiple compliance malfunction if connectivity disconnected. One action is harmless, sources of engine miles. Because of to any of the required data sources is the other is tampering. widespread variability among CMVs lost for more than 30 minutes during a 2. FMCSA Response with respect to what data can actually 24-hour period aggregated across all be readily extracted by ELD providers, driver profiles, including the Table 4 of the appendix explains the Zonar believed FMCSA should consider unidentified driver profile. malfunction codes that must be listed a version of ELD that substitutes GPS- FMCSA also proposed that engine for a variety of issues including engine derived data (such as mileage) for data synchronization must be functional for synchronization compliance that cannot be readily obtained from a all but 30 minutes in a 24-hour period. malfunctions. If the ECM or ECM vehicle ECU or a vehicle data bus. If it is not, an engine synchronization connectivity is unresponsive for more Modern GPS fleet tracking devices can compliance malfunction must be logged. than 5 seconds, or if the failure cannot be wired securely and permanently into If the vehicle ECM becomes be recorded until the ELD is fully a vehicle, can be programmed to unresponsive, XRS asked what value functional again, Table 4 in the uniquely identify individual vehicles, should be inserted into these fields to appendix outlines how to capture these and can provide very accurate mileage record the malfunction. There are other malfunctions. These conditions are not data and truck run time data to validate cases of failure that could prevent expected to be occurring frequently but driver records. significant data being available to record FMCSA acknowledges that on occasion (e.g., Driver interface unit failing.... that a malfunction or disconnection 2. FMCSA Response ‘‘Data recording compliance’’ anomalies will occur, but still requires Because today’s rule is only malfunction). The ECM could recover at the ELD to adhere to the standard of mandatory for motor carriers operating

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CMVs that are model year 2000 or P. Power-On Status Time proposed data elements dictionary newer, all engine miles must be derived (proposed section 7.1.39; section 7.40 in 1. Comments to the 2014 SNPRM from the ECM or ECM connection. this rule), even though time must be Synchronization with a satellite for the The SNPRM stated that an ELD must captured in UTC, event records must receipt of GPS-derived data is not the be powered within 15 seconds of the use time converted to the time zone in same as being integrally synchronized vehicle’s engine receiving power and effect at the driver’s home terminal. with the engine of the CMV, as required must remain powered for as long as the Proposed section 4.6.1.3, timing in today’s rule. Engine synchronization vehicle’s engine stays powered. compliance monitoring, would have required an ELD to periodically cross- for purposes of ELD compliance means XRS stated that FMCSA needs to check the automatically acquired date the monitoring of the vehicle’s engine clarify the definition of power on the device within 15 seconds referencing and time with an accurate external UTC operation to automatically capture data, Fig 1. XRS asked if this is for internal source. including: the engine’s power status, processing or is this for all input and Zonar asked FMCSA to clarify all vehicle’s motion status, miles driven outputs? There are portable devices sections that reference time format. value, and engine hours value. commercially available that can take Zonar commented that it can be very O. Records Logged Under the much longer than 15 seconds to be difficult to calculate a true 24 hours and Unidentified Driver Profile available; these are tablets, ruggedized accurately record time unless there is a handheld computers, and smart phones one consistent format; multiple formats 1. Comments to the 2014 SNPRM that can meet all other ELD recording cause inconsistencies in data. If one requirements. Omnitracs raised the event needs to be recorded as The SNPRM proposed that all records same issue. It stated that a better HH:MM:SS then all clocks within an logged be recorded on the ELD. If a solution would be for the system to read ELD need to run on this format. If the driver did not respond to prompts to log and retain data from the ECM; a 180- HH:MM:SS clock needs to record an in, that time became unassigned driving second time frame would better HH:MM for a different event, the time, and would be visible to any accommodate existing hardware that commenter asked how the ELD should authorized safety official viewing the could have slower cold boot handle the seconds—does it round up or ELD records. capabilities. Omnitracs and inthinc down. Zonar asked for specific Omnitracs stated that it was unclear noted that the rule does not indicate examples within guidance to this question and suggested an HH:MM how to handle unclaimed, unassigned what ELD functionality is required. clock to eliminate the need to round the driving time. It recommended that the 2. FMCSA Response seconds. persistence of unclaimed unassigned Eclipse Software Systems stated that driving time only be kept on an ELD for As part of the ELD User Guide or a driver Standard Operating Procedure on it had seen many projects in the past 8 days (maximum duty cycle). After where storing time in the local format such time, the ELD may delete any proper use of the ELD, FMCSA will recommend that the driver turn on the leads to problems, particularly when at recorded yet unclaimed unassigned engine and then power on and start up or near daylight savings changeovers. drive time. In addition, unassigned the ELD, before moving the vehicle. While it is only 1 hour per year, when driving time should be sent to any ELD However, the requirement remains the daylight savings occurs in the fall, there support system (e.g., host system) for same; the device must receive power are two periods from 1am to 2am. All future assignment if the driver does not within 15 seconds, and the driver events during those 2 hours are claim unassigned driving time on the should pre-boot the equipment prior to ambiguous. It recommended that all ELD directly. powering up the vehicle. Similarly, at times be stored and reported in UTC, Omnitracs recommended an power off and shutdown, FMCSA will which is what is reported by GPS exception to this requirement in the recommend driver certifications of systems by default. Omnitracs stated a concern about case of unit maintenance where the ELD records, followed by ELD log off, followed by engine shutdown. By not recording a qualifying 34-hour restart. may be completely ‘‘reset’’ and all data With respect to timing compliance purged from the ELD. In this situation, following these recommendations, malfunction codes and annotations will monitoring, Eclipse stated that aside the ELD is allowed to act as a ‘‘new’’ from GPS, it is difficult to obtain other ELD with no driver history. In addition, be needed in order to explain unaccounted odometer changes and reliable sources of the precise time. It Omnitracs recommended that any ELD has seen cell towers (which are not support system not be required to suspicious driving activity. This 15 second start up time is not accessible from all proposed ELDs) have maintain this information and then time stamps that are years off. The ELD ‘‘push’’ back to the ELD post unreasonable, compared with other start up times for similar technology. could watch for backdating, if a time maintenance. However, in response to the concern stamp from GPS is ever before another received timestamp from GPS, but other 2. FMCSA Response from commenters, FMCSA extends the requirement to a period of 1 minute for validation would be quite difficult. All data for the last 8 days, including full functionality in today’s rule. 2. FMCSA Response unassigned driving time, must be Additionally, any reboots that take In response to comments, FMCSA available at roadside. There is no longer would already be logged as changes the time to be captured in requirement that unassigned driving power diagnostic events. today’s rule to include seconds. Today’s time be available at roadside after 8 Q. Time rule requires an ELD to convert and days. All data older than 8 days can be track date and time—captured in UTC purged from the ELD, but all data, 1. Comments to the 2014 SNPRM standard—to the time standard in effect including unassigned driving time, must The SNPRM proposed that the ELD at driver’s home terminal, taking the be available to inspectors at the motor automatically record the time at changes daylight savings time changes into carrier’s principal place of business for of duty status and certain intervals account. An ELD must record the 6 months. (§ 395.26(b)(2)). As described in the driver’s RODS using the time standard

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in effect at the driver’s home terminal S. ELD Vehicle Interfaces specifications in today’s rule. As for a 24-hour period beginning with the indicated in that section, if an ELD is 1. Comments to the 2014 SNPRM time specified by the motor carrier for being used voluntarily in a vehicle older that driver’s home terminal. In the SNPRM, section 4.2 of the than model year 2000, it may use The data element ‘‘Time Zone Offset technical specifications proposed that alternative sources to obtain or estimate from UTC’’ must be included in the an ELD must be integrally synchronized the required vehicle parameters with the ‘‘Driver’s Certification of Own Records’’ with the engine of the CMV. Engine listed accuracy requirements under events as specified in section 4.5.1.4. synchronization means monitoring the section 4.3.1. However, any CMV Time must be stored in UTC, and vehicle’s engine operation to manufactured beginning model year reported in carrier’s local time. If an automatically capture engine’s power 2000 must use an ELD that connects to ELD stored it in a different format that status, vehicle’s motion status, miles the ECM. was translated to UTC, this would be driven value, and engine hours value. FMCSA believes that the ECM or ECM acceptable. An ELD used while operating a 2000 or connectivity is the best and most cost- In today’s rule, FMCSA does not later model year CMV, as indicated by efficient source of data. However, require the ELD to record State time. the tenth character in the VIN, that has FMCSA understands that drivers with FMCSA does not believe that it is an engine ECM, must establish a link to non-ECM engines might see benefits necessary for the ELD to record State the engine ECM and receive this from the use of an ELD. Today’s rule time for HOS compliance. However, information automatically through the requires a reasonable proxy for the data FMCSA does not prevent ELD providers serial or Control Area Network if the ECM or ECM connectivity is not from including State time as part of a communication protocols supported by providing it. So although a connection compliant ELD. the vehicle’s engine ECM. The SNPRM to the ECM or ECM connectivity is In regard to the comment on timing proposed that if a CMV is older than preferable, voluntary use of an ELD compliance monitoring, this section of model year 2000 and does not have an could be used with any CMV, provided the rule has been clarified per the ECM, an ELD may use alternative the accuracy specifications are met. requester’s suggestion and the rule no sources to obtain or estimate these longer requires the ELD to cross check vehicle parameters with the listed T. Vehicle Miles time if it uses GPS. accuracy requirements under section 1. Comments to the 2014 SNPRM 4.3.1. R. User List XRS asked FMCSA to clarify if a link Section 4.3.1.3 of the SNPRM 1. Comments to the 2014 SNPRM to the ECM is the only method for the proposed that an ELD must monitor vehicle miles as accumulated by a CMV In section 4.8.2.1.2, the SNPRM ELD to receive information or could over the course of an ignition power on proposed that the ELD should provide a information be received from specific cycle (accumulated vehicle miles) and ‘‘user list.’’ In chronological order, this ECUs in the vehicle; e.g., can the ELD over the course of CMV’s operation user list shows all drivers and co-drivers interface with other components on the (total vehicle miles). If the ELD is with driving time records on the most bus including the instrument cluster recent CMV operated by the inspected and the vehicle management system. required to have a link to the vehicle’s driver or motor carrier’s support Because there is not Fstandardization on engine ECM (as specified in section 4.2), personnel who requested edits within the OBD that is published with the the ELD must monitor the ECM’s the time period for which this file is Society for Automotive Engineers for odometer message broadcast and use it generated. odometer and other elements that could to log total vehicle miles information If ELDs are swapped on a CMV, be captured, XRS asked what FMCSA and determine accumulated vehicle Omnitracs believed that the new ELD would expect manufacturers to capture miles since engine’s last power on should not be required to know the for light duty vehicles. The same instance. Otherwise, the accumulated driver list for the CMV prior to the ELD commenter wrote that FMCSA needs to vehicle miles indication must be being installed in the CMV. XRS stated coordinate with National Highway obtained or estimated from an accurate ± that FMCSA needs to describe how this Transportation Safety Administration source (within 10 percent of miles user list would be used at roadside and concerning the requirements of the accumulated by the CMV over a 24-hour if there could be a validation process for capturing of ECM data. For light duty period, as indicated on the vehicle’s its use. Depending on the time of day, vehicles that may be required to use an odometer display). there may be users who will not be in ELD, FMCSA should require providers XRS suggested that FMCSA define the CMV user list from the support of OBD–II to supply proprietary or specifics of odometer use that are system due to last time the CMV public information to satisfy the acceptable. XRS questioned if the communicated with the host. regulation requirements for ECM data odometer may be used from the capture. XRS also believed that ECM instrument cluster. XRS believed that 2. FMCSA Response data capture of specific OBD–II data the proposed method is inconsistent. For a reset or replaced ELD, today’s requirements may increase the overall Zonar stated that heavy-duty vehicles rule requires data or documents cost of ELD solutions. may have more than one controller on showing the driver’s RODS history in the data bus that provides odometer the vehicle. This data would include the 2. FMCSA Response value in verifying levels of precision. driver’s past 7 days of RODS either FMCSA agrees that mandatory Zonar suggested pulling the mileage loaded into the ‘‘new’’ ELD or in paper transfer through the OBD–II could from the dash as this is more accurate format to be provided at roadside. There require additional information transfer than the engine and is in-sync with is no requirement that the ELD have a or equipment. In today’s rule, FMCSA what will be on the dash. wireless connection. does not require drivers of CMVs Eclipse Software Systems stated that In the case of ELDs that include a manufactured before model year 2000 to it would avoid calculating and storing wireless connection, a user list must be use ELDs. However, if a driver of one of the mileages for each on/off pair. It is available up to the date from the last those vehicles voluntarily uses an ELD, simpler to record the odometer at the time the CMV or ELD communicated they must do so in compliance with required intervals (duty status changes with the host or back office system. section 4.2 of the technical and hourly). The elapsed miles can be

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calculated (perhaps by eRODS) for each 2. FMCSA Response drivers using RODS to use an ELD, driving segment (and hour) using only FMCSA continues to believe that a regardless of the CMV the drivers that data. speed threshold is the best way to operate. The California Construction Trucking 2. FMCSA Response determine accurate motion. FMCSA declines to create an alternate threshold Association said that while it is possible By definition, an ELD means a device that relies upon distance; the data files to retrofit an older truck, its research or technology that automatically records and the actual location will show how indicates that it is costly, at about a driver’s driving time and facilitates the far the CMV has moved. Any additional $1,000 per truck in California. In contrast, Continental stated that it accurate recording of the driver’s HOS, threshold that captures vehicle motion would cost between $100 and $300 per and that meets the requirements of before the speed threshold required by vehicle. subpart B of this part. The data received the rule is met is acceptable. However, For vehicles that do not have a from the ECM is more accurate than the as soon as the required speed threshold is met, the ELD must record, even if the diagnostics port, but have an electronic data that is displayed on the dash. speedometer, Continental stated that the However, when there is no ECM or ECM alternate threshold is not met. In today’s rule, once the vehicle speed ELD can use the analog speed signal to connectivity in the CMV, and an ELD is exceeds the set speed threshold of no calculate the odometer and engine being used voluntarily, vehicle miles more than 5 miles per hour, it must be hours. This functionality is already can be derived from either engine or considered in motion until its speed integrated in some existing AOBRDs at dash odometer, provided that method of falls to 0 miles per hour and stays at 0 no additional cost. For vehicles that do transfer meets the accuracy specification miles per hour for 3 consecutive not have a diagnostics port and that in section 4 of the technical seconds, at which point it will be have a mechanical speedometer (mostly specifications. If the reading of the considered stopped. FMCSA has built before 1992), Continental wrote mileage meets the accuracy established this requirement to that a speed sensor must be added to specification required in section 4 of the determine the initiation of vehicle convert the mechanical signal into an appendix, although it could be slightly motion, which is at a very low speed of electronic pulse signal. different in the ECM than on the no greater than 5 miles per hour. The XRS stated that the GPS solutions and odometer, the reading ensures the accuracy does not apply to highway related costs for black boxes could have vehicle mileage data is of value. In the speed. an incremental cost of $250 per vehicle. case of large anomalies between the two V. Wireless Electronic Transfer PeopleNet stated that obtaining speed readings, the authorized safety official from a source other than the ECM or will decide whether further 1. Comments to the 2014 SNPRM GPS will be very complex and cost- investigation would be required. Proposed section 4.10.1 provided that prohibitive. When a connection to the ELDs must transmit records ECM is not available, it recommended U. Vehicle Motion Status electronically in accordance with a that GPS be used to determine vehicle 1. Comments to the 2014 SNPRM specified file format and must be speed. The commenter wrote that non- capable of a one-way transfer of these GPS options to determine vehicle speed In section 4.3.1.2, the SNPRM records to authorized safety officials include ranging laser, accelerometer, proposed that an ELD must upon request. Proposed section 4.10.1.1 revolution counter (tire); or camera. automatically determine whether a CMV described the standards for transferring PeopleNet did not believe any of these is in motion or stopped by comparing ELD data to FMCSA via Web services. options could ensure accuracy within the vehicle speed information to a set BigRoad stated that section 4.10.1.1 (plus or minus) 3 miles per hour of the speed threshold. If an ELD is linked to describes how an ELD provider must CMV’s true ground speed. the ECM, vehicle speed information obtain a public/private key pair Zonar supported using GPS-based must be acquired from the engine ECM. compliant with NIST SP 800 32. Using ELDs for older CMVs. It stated that Otherwise, accurate vehicle speed a private key in this scenario is not ideal modern GPS fleet tracking devices can information must be acquired using an since it would have to be stored on be wired into a vehicle, be programmed independent source—apart from the every ELD that might create the email to identify individual vehicles, and positioning services described under and is therefore exploitable via memory provide very accurate mileage data and section 4.3.1.6. inspection or code disassembly. truck run-time data. The Truck and Engine Manufacturers Omnitracs recommended a second 2. FMCSA Response Association raised questions about distance threshold as an additional All required security measures for whether FMCSA was referring to model means to automatically detect and data transfer with the Agency, public or years or calendar years. The commenter transition into driving status. This private, will require strict adherence to believed that the additional requirement commenter believed that simply using a NIST for all data in transit or that the engine actually have an ECM is speed threshold could potentially ‘handshakes’ between Government and crucial in the event that a mechanically reduce accuracy in determining an private systems. DOT guidelines follow controlled engine was installed in a actual driving event. Ongoing NIST 820. The exact Public Key vehicle with a model year 2000 or later. verification of this accuracy would Infrastructure (PKI) for ELD data One carrier stated that OBD–II ports require an alternate source of speed transfers will be distributed once ELD data could not be shared if they are detection and is not feasible during providers register and certify ELDs. already dedicated for another purpose. normal operation. In addition, W. Pre-2000 Model Year CMVs Another problem is that there are five Omnitracs believed this level of different protocols used in OBD–II and accuracy (+/¥3 miles per hour 1. Comments to the 2014 SNPRM the software is proprietary to the vehicle tolerance) should only be required at the FMCSA sought comments on issues manufacturer. This would require the bottom end of the speed values used for related to installing and using an ELD vehicle manufacturer to release their motion detection and not be required at on CMVs manufactured prior to model software to use the OBD–II to capture higher speed readings (e.g. at 75 mph). year 2000. The SNPRM required all the necessary data effectively.

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2. FMCSA Response carrier actively manage the ELD should establish a more secure means to When FMCSA developed the accounts. The motor carrier would have identify the driver operating the vehicle technical specifications, the Agency to include certain identification data and tie the resulting ELD records to that considered whether ELDs could be elements in the ELD user account driver. easily installed in the full range of assigned to a driver (§ 395.22(c)). These Several commenters stated that the CMVs operated by drivers subject to the data elements include the driver’s requirement that a person have a single HOS requirements. The Agency license number and the name of the role (driver or support person) fails to determined that the most practical and State that issued the license. Under the accommodate smaller carriers where cost-effective means of achieving proposal, the motor carrier assigns the there is no support staff and the driver/ compliance is the use of the ECM or ELD username during the creation of a owner fills both roles. BigRoad stated that proposed section ECM connectivity or OBD–II ports. new ELD account (§ 395.22(b)(2)(ii)). As 7.1.13 (7.13 in this rule) indicates that Generally, these options are available in proposed, the ELD username is any a person who is both the driver and the all the vehicles manufactured beginning alphanumeric combination, 4 to 60 support person would need to maintain with model year 2000 and on many pre- characters long, but it cannot include two separate accounts in the system, 2000 vehicles. After reviewing the either the driver’s license number or since each account can only be given a comments in response to the SNPRM, social security number. The SNPRM single role in the ELD account type the Agency believes that imposing a also proposed adding unique field. That person would have to switch requirement for ELDs on pre-model year authenticated-user profiles for all users between accounts to perform different 2000 vehicles is not feasible in all cases of the ELD and its support system, to functions on the same system, creating and that trying to distinguish when it is increase transparency and responsibility an unnecessary administrative burden. a viable option is too difficult in this between a motor carrier and its drivers, XRS, Omnitracs, inthinc, and Zonar also rulemaking and next to impossible at as well as to prevent fraudulent raised this issue. XRS asked if account the roadside. activities. creation can be performed on the host Some private-sector publications, Commenters expressed concern with and if the credentials can be stored on such as the IHS Inc.’s March 2014 the requirements for user names. FedEx the host. publication ‘‘Quarterly Commercial stated that it is too restrictive. Because current usernames are sufficiently Zonar asked how a driver can certify Vehicle Report,’’ suggest that the his or her records at the end of a 24- population of pre-2000 Class 3 through identifying drivers, FedEx suggested that FMCSA expand this requirement to hour period if the driver has gone off Class 8 CMVs (CMVs with a gross duty for multiple days. It suggested vehicle weight rating greater than allow ELD users to set the format of their own usernames. Concerns about allowing the driver to confirm the 10,000 pounds) is approximately 35 the creation of multiple aliases for a records on the driver’s return to duty. percent of the registered CMVs in single driver could be addressed via Section 395.32(c) describes the operation (4,178,000 pre-2000 versus DOT compliance reviews. carrier’s responsibility to review 7,723,000 2000-current). These vehicles FedEx stated that the requirement unidentified driving records; however, will have been in operation more than does not accommodate all motor carrier it does not establish an expectation for 17 years by the compliance date of this structures. FedEx suggested that the when the motor carrier must complete rule. Therefore, the percentage of these user rights management rule require that the review. Schneider recommended vehicles operated by drivers who are ELD accounts are managed that the rule specifically state the required to use ELDs is likely to be appropriately and that the motor carrier number of days a carrier is allowed to small. is responsible for any failures. With the research and assign the unidentified The Agency decided not to use carrier ultimately responsible, the rule driving segments or annotate the record alternate technology for vehicles need not dictate who must manage the explaining why the time is unassigned. without ECMs, ECM connectivity or account. Because the carrier has to make contact OBD–II ports. While FMCSA is aware ATA stated that FMCSA should with the driver or research if the tractor that there are technologies that would consider alternatives that accomplish was moved by maintenance, one make this possible, it does not mandate the same objectives and include the commenter believed that 8 days is a their use. In the RIA for today’s rule, same protections against fraud. This reasonable time frame to allow for this FMCSA estimates that there will be alternative would prevent carriers and research to be done. approximately 209,000 pre-2000 model providers from having to implement 2. FMCSA Response year vehicles in 2017. FMCSA has new systems to assign identifiers based decided to exempt this relatively small on CDL numbers. FMCSA acknowledges commenters’ population of CMVs. Saucon Technologies stated that concerns, but emphasizes that the Concerning the comment from XRS, requiring drivers to enter their entire rulemaking does not impose the types of part 395 does not require black boxes CDL number and State presents some restrictions on usernames and nor is there anything in the SNPRM technical challenges. Many existing ELD passwords that the commenters related to ‘black box’ modification. Each solutions do not provide the ability to described. Section 4.1.2 of the appendix ELD provider supports proprietary enter alphabetical characters, only to part 395 covers account creation with communications via satellite, code numeric characters. Requiring the name the explanation that each driver account division multiple access or CDMA, of the State and entire CDL number must require the entry of the driver’s Bluetooth, etc. The market dictates these would necessitate new hardware and license number and the State of products and their communication increase the time required for drivers to jurisdiction that issued the driver’s needs. sign on. Schneider asked for license into the ELD during the account X. Authenticated User and Account clarification on what proper creation process. The driver’s license Management identification data are as they relate to information is only required to set up logging into an ELD. the user account and verify the identity 1. Comments to the SNPRM AGC stated that in its industry of the driver; it is not used as part of the Section 395.22(b)(2)(i) of the SNPRM multiple drivers—including temporary daily process for entering duty status would have required that the motor employees—may use a vehicle. FMCSA information.

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There may only be one user account ODND time, even if it is not in the truck SNPRM also required an ELD to be able per driver’s license number and the (see § 395.2, On-duty time). The SNPRM to present a graph grid of the driver’s carrier would be responsible for did not propose any changes to this daily duty status changes either on a establishing requirements for unique underlying HOS requirement. display unit or printout. user identifications and passwords. Saucon Technologies, XRS, Zonar, Omnitracs stated that the SNPRM’s Therefore, the burden that commenters and PeopleNet suggested that FMCSA technical requirements for data transfer believed would be imposed by the rule clarify how ODND time is to be mechanisms, and the options provided, was not intended and indeed is not a managed when the driver is not at the use technologies that are not easily requirement in this rule. truck. PeopleNet stated that many adaptable or readily available for This rule does not differentiate customers use payroll integrations to enforcement to deploy. The IME between temporary and permanent put their drivers on duty (i.e., when the generally supported requirements to employees, nor does it affect how many driver swipes the time clock, it puts the ensure that the ELD would be able to drivers may use a CMV. Each motor driver on duty via the AOBRD). Payroll communicate with officials at roadside. carrier that assigns a driver to operate a integrations also allow administrators to IFDA stated that the requirement that CMV under its DOT number must put a group of drivers on duty to systems use a ‘‘standardized single-step establish and manage an ELD user account for time spent at a safety driver interface for compilation of account for that driver. meeting. driver’s ELD records and initiation of Each driver should have one account the data transfer to authorized safety 2. FMCSA Response that allows him or her to login and officials . . .’’ is unnecessary and overly perform driver-related functions specific FMCSA emphasizes that today’s ELD prescriptive. Many devices currently in to the driver. All other administrative rule does not change the underlying use require the driver to perform more functions should be based on the HOS requirements. The ELD than a single step to display the discretion of each company or its automatically captures the date, time information. These systems do not pose provider. This means a driver who is and location when the vehicle is turned a significant burden for drivers or also the owner of the company would on and turned off, when someone starts authorized safety officials and do not have a single account authorizing to drive the vehicle, and when the appear to compromise safety in any entries as a driver, and a separate individual stops driving. The system way. IFDA opposed the requirement for account for administrative functions. also captures automatically the date, a graphic display or printout, and they Accounts can be created on the ELD or time and location when manual entries felt that these unnecessary requirements the ELD support system. are made so that the driver’s location would add additional costs without any In response to Zonar’s comments, and time are captured when manual commensurate safety value. FMCSA emphasizes that a driver only entries (such as on-duty, not driving, or CVSA believed that the regulation needs to certify his or her records for sleeper berth) are entered. An ELD should require a practical standard each 24 hour duty status period he or system relies upon the driver to enter interface for manual roadside she is on duty. This is the case under information about the duty status when inspections: ‘‘A requirement for a the HOS rule and the ELD rulemaking the vehicle is stopped or parked. The printout of the HOS graph grid showing does not alter the duty status ELD captures the same duty status the same information contained in the requirements under the HOS rule. The options that are available to drivers paper logs is a proven, reliable, and ELD would allow the record to be currently relying upon paper RODS. The cost-effective technical solution that confirmed as off-duty when the driver technical specifications do not prevent would significantly enhance the returns to duty. There is no prohibition supervisors from having administrative enforceability of the regulation.’’ on a driver certifying multiple days off rights to add ODND time onto drivers’ PeopleNet stated that providers on a single RODS. And, in the case ELD records. should have to support only one where the driver has Web-based access With regard to time a driver may primary and one secondary method. to review the records and make certain spend working for another employer, Boyle Transportation recommended edits or entries, the rule does not the time must be counted as on-duty FMCSA require support systems for prohibit the driver from logging into the time, either driving or not driving. This ELDs, use Web services exclusively, system to provide updates on the duty is required by the current HOS rules, allow display mode for inspections, and status when there are multiple days and the ELD mandate does not change limit electronic submissions. A rural transit provider stated that away from the CMV. This is also a this fact. The ELD system mandated by connectivity is not available in many means for drivers employed by more this rule provides drivers with the areas, so Internet and cellphone than one motor carrier to update records ability to update their RODS to account reception is not possible. ELDs that rely between carriers. for time the device is not capable of on such connectivity are not viable. Regarding the issue of providing generating automatically. carriers enough time to audit electronic Z. Data Transfer 2. FMCSA Response RODS and make corrections, FMCSA In consideration of the comments, does not place limits on when an 1. Comments to the 2014 SNPRM FMCSA revised the data transfer annotation or correction may be made. The SNPRM used a menu-style options, by establishing two options for The motor carrier must maintain the approach, and several of the compliant electronic data transfer (option one is a original record so that authorized safety options would have required wireless telematics-type ELD with a minimum officials can compare the chronology connectivity. The SNPRM proposed that capability of electronically transferring with the annotations and corrections, all ELDs would need to use one of seven data via wireless Web service, and and supporting documents. combinations of USB 2.0, printouts of email; option two is a ‘‘local Y. ODND Time QR codes, TransferJet, wireless Web connectivity’’ type ELD with a services, Web email, and Bluetooth for minimum capability of electronically 1. Comments to the 2014 SNPRM the electronic transfer of data to transferring data via USB 2.0 and The existing HOS rules require a authorized safety officials. One Bluetooth). Additionally, both types of driver to record in his or her RODS any alternative included a printout. The ELDs must be capable of displaying a

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standardized ELD data set in the format that USB transfer is specifically for a Inthinc recommended specified in this rule via printout or drive—not for just a cable—and that the Representational State Transfer (REST), display to an authorized safety official USB 2.0 port on the ELD can be an noting that Simple Object Access on demand. FMCSA’s changes address accessory to the ELD. Protocol (SOAP) is much more difficult comments and concerns about the types and expensive to implement, and it is 2. FMCSA Response of data transfer, as well as provide becoming archaic. flexibility for providers and motor FMCSA believes that USB 2.0 is a 2. FMCSA Response carriers looking for ELDs to suit cost-effective, technically viable option different business needs and costs. for many authorized safety officials to FMCSA believes that Web Services These changes are discussed in more obtain an electronic data file from an will be a viable data transfer option for detail in the next few sections. ELD. The Agency acknowledges that telematic ELD providers. SOAP is a Although areas within the United some States have IT security—related standards-based Web services access States where data connectivity is not restrictions that would preclude their protocol utilized for telematics data available are shrinking, FMCSA officers from relying on USB 2.0 drivers transfers. Therefore, today’s rule retains understands that some areas of the or USB 2.0 connections to the ELD as a Web Services as a valid method of data country do not have such access. means of retrieving the RODS transfer, one of the two methods Today’s rule allows for alternative information. This information was described in section 4.9.1(b) to transfer methods of data transfer including presented during the MCSAC’s session data as part of the telematics option, Bluetooth and USB 2.0. Where data concerning ELD technical along with wireless email. transfer is not practical, the driver can specifications. The Agency continues to FMCSA has clarified the public/ still show enforcement compliance via a believe it should be included in the list private key in section 4.10.1.1. of the printout or the ELD display. Due to of options for making data files available technical specifications of this rule. potentially hazardous conditions (i.e., to roadside inspectors. It is not expected CC. Wireless Services via E-Mail weather, traffic, etc.) during roadside that this option would be used by every inspections, authorized safety officials State, but retaining a range of 1. Comments to the 2014 SNPRM may ask drivers to hand them their ELD capabilities required on the driver side, J.B. Hunt and inthinc supported email outside of the CMV so that they may including USB 2.0 capability, will help as a viable, low cost option for examine the ELD display of data at a to ensure flexibility for the enforcement electronically transferring ELD data. safe distance outside of the CMV. community. In the SNPRM, the USB 2.0 Inthinc believes that ELDs could have Absent a printout, an ELD must be as a part of almost every option for an all inspection station email addresses designed so that its display may be ELD. In today’s rule, the USB 2.0 is a pre-programmed or ELDs could reasonably viewed by an authorized requirement, along with Bluetooth automatically send emails to these safety officer without entering the CMV. under only the ‘‘local data transfer ’’ addresses upon entry to inspection AA. USB 2.0 option, meaning that it would be stations. Continental supported it as an possible to have a compliant ELD that option, but not a mandate. 1. Comments to the 2014 SNPRM did not have USB 2.0 if the telematics- Drivewyze said that this option is J.B. Hunt, Continental, and PeopleNet type ELD is selected for use. redundant with Web services and could supported USB 2.0 as a method to In regard to USB standards becoming be cut. BigRoad recommended electronically transfer data due to its obsolete, that is the case with any eliminating this option to simplify low cost, and ease of deployment technical standards irrespective of inspection requirements. without complex IT infrastructure nor whether the standards are referenced in Omnitracs stated there is a need for any monthly communication and a rulemaking. The criticism of the USB clarification around the use of the service fees. With appropriate security 2.0 standard not being widely used by public/private keys, including security software on the USB 2.0 device, J.B. authorized safety officials is no longer provisions and the process for Hunt wrote there could be safeguards to relevant, given that authorized safety refreshing the public/private keys as a avoid transmission of malware. Eclipse officials will have the option, under part of security best practices. Software Systems recommended today’s rule, to utilize Bluetooth instead 2. FMCSA Response requiring ‘‘at least one’’ USB 2.0 port on of USB 2.0 for electronic data transfer. ELDs. Today’s rule allows the use of email In contrast, the National School BB. Wireless Data Transfer Through as a part of the telematics ELD Transportation Association (NSTA), Web Services specifications in section 4.9.1(b) of the BigRoad, Omnitracs, inthinc, and 1. Comments to the 2014 SNPRM appendix to part 395, along with Web Drivewyze Inc. (Drivewyze) did not services. FMCSA does not believe it is fully support USB 2.0 as a required PeopleNet recommended using a Web redundant because it provides a way for backup method for the electronic Service as a primary electronic data enforcement to access the data without transfer of data due to future hardware transfer method, while Continental using FMCSA or other government design constraints, security/encryption supported it as an option, but not a systems. Authorized safety officials concerns, lack of availability of mandate. could use either Web services or connections on computers, and probable BigRoad recommended eliminating wireless email to verify ELD data from obsolescence. J.J. Keller and Associates, wireless data transfer through Web an ELD with this telematics option. Inc. (J.J. Keller) noted that requiring a Services to simplify inspection FMCSA agrees that inspection specific technology, such as USB 2.0, requirements. Omnitracs stated there is stations and other enforcement Agencies constrains the hardware design to meet a need for clarification around the use could post or share a standardized email the specifications. This will likely cause of the public/private keys in this address but does not require this. more frequent upgrades in hardware to section, including security provisions FMCSA believes a benefit of transferring adapt to more modern USB 2.0 flash and the process for refreshing the ELD data to authorized safety officials devices, increasing cost to industry. public/private keys as a part of security by email is a viable method to submit Inthinc recommended that the rule state best practices. data to the officer if necessary.

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FMCSA clarifies the public/private EE. QR Codes and Transfer Jet technology as not being viable means of key requirements in 4.10.1.1(4)(b)(2) of transferring electronic ELD data. 1. Comments to the 2014 SNPRM the technical specifications. Therefore, today’s rule does not include Overall, none of the commenters QR codes nor TransferJet technology as DD. Bluetooth supported QR codes or TransferJet as options for electronically transferring 1. Comments to the 2014 SNPRM feasible solutions for electronically ELD data to authorized safety officials. transferring ELD data for the purposes of Drivewyze recommended Bluetooth roadside enforcement. FF. Other Communications and as a viable data transfer option. Omnitracs, PeopleNet, XRS, inthinc, Technology Options Continental supported it as an option, and Drivewyze did not believe that QR 1. Comments to the 2014 SNPRM but not a mandate. Codes are a viable ELD data transfer J.B. Hunt noted that Bluetooth option at roadside. Omnitracs wrote that Garmin, J.B. Hunt, and Eclipse transmissions are short-range, which typical drivers would need to present recommended use of Wi-Fi as an would limit the effectiveness of this between 6 and well over 30 QR codes additional primary transfer option. technology. Eclipse was concerned that must be scanned by an authorized Similar to using Bluetooth, Garmin about Bluetooth personal area network safety official in the proper order, which wrote that Wi-Fi would enable the ELD in the roadside environment, does not seem to be realistic in the field. to connect to the authorized safety commenting that Bluetooth has a typical Issues with screen size, screen official’s device via the local area operating range of 30 feet. Many officers resolution, the type of scanner (camera network at the inspection site. use laptops mounted in their patrol versus laser), and the amount of data Alternatively, the Wi-Fi connection at vehicles, which sit behind the truck and that needs to be transferred adversely the inspection site could be used to a 52-foot trailer, making reception from impact the ability of an authorized transfer the ELD records via Web the patrol car cab unlikely. safety official to successfully scan the Services. Commenters pointed out that Verigo and inthinc disagreed with QR codes. Drivewyze stated that on- Wi-Fi range is larger than the very short including Bluetooth as a means of screen QR codes cannot be scanned, and range within which Bluetooth devices electronic data transfer. Garmin Ltd. printed QR codes are redundant with communicate, and it supports higher (Garmin) believed the description of printing grid graphs. As a result, QR data transfer speeds. Wi-Fi technology transferring ELD records using the codes were recommended to be has the means to support the setup of Bluetooth transfer method in section removed as an option. security-enabled networks where users 4.10.1.2 should be further clarified. Drivewyz, BigRoad, PeopleNet, can view available devices and request Once the connection is successfully Continental, and J.B. Hunt questioned a connection, or may receive an established, this section indicates that the feasibility of TransferJet as a viable invitation to connect to another device. the ELD must connect to the official’s method of electronically transferring Garmin recommended that an technology via wireless PAN and ELD data to roadside officials. J.B. Hunt, additional alternative method to transmit the required data via Web XRS, and Drivewyze noted that consider is the transfer of ELD records Services as described in section TransferJet is not a mainstream using a secure digital (SD) card, that is 4.10.1.1. Garmin wanted FMCSA to technology. PeopleNet and XRS also via a microSD card and optional consider the case where the official’s stated that TransferJet is not widely microSD to SD memory card adaptor. device cannot connect to the internet. In used except in smartphones; and that The requirements for authenticating the this scenario, it will also be possible to there are limited suppliers of products driver, the ELD system, and the official’s transfer the ELD records directly to the to support current architectures. hardware when using the USB 2.0 official’s device over Bluetooth. BigRoad noted TransferJet has no method can continue to be realized and supported. 2. FMCSA Response encryption mechanism built into the link layer; for security, the transmission 2. FMCSA Response FMCSA included Bluetooth as part of should be encrypted. Continental the local data transfer ELD option FMCSA does not prohibit the use of pointed out that the TransferJet a Wi-Fi device for intermediary transfer, specifications in section 4.9.1(b), along technology is not used today in either with USB 2.0 connectivity. FMCSA but the data transfer to an authorized automotive or commercial vehicle safety official must occur in accordance acknowledges that Bluetooth has its applications and should be removed limitations as all technologies do, but, it with the technical specifications. Data from the list of options. transfer to an authorized safety official is a widely used, reliable, short range PeopleNet stated that TransferJet must occur through wireless email, non-telematic data transfer method. requires the purchase of additional wireless Web services, USB 2.0, or In today’s rule, FMCSA changed the hardware, which FMCSA did not take Bluetooth. This is because language in 4.10 to clarify the fact that into consideration in the cost analysis. implementation of another option the Bluetooth transfer does not occur via In addition, commenters were would necessitate hardware changes for telematics, as was written in the concerned that many suppliers would ELDs and would also increase the risks SNPRM. If a driver is using a local data need to make modifications at the of conflicts between the regulatory transfer method and the officer cannot operating system level to take advantage options and the IT security regulations accept the data for some reason, the of the new hardware. Commenters policies that FMCSA and its State officer has the ability to request the data contended this solution would be prone partners must follow. in the form of a display on the ELD or to failure due to discrete hardware a printout, depending on the type of components, and increase both carrier GG. Data Reporting During Roadside ELD. and supplier support costs due to this Inspections FMCSA does not agree with the sole source solution. commenter who stated that Bluetooth is 1. Comments to the 2014 SNPRM not designed for this type of transfer; the 2. FMCSA Response CHP stated that a data exchange may mechanism for data transfer does not FMCSA agrees with the commenters’ present cross connectivity issues when distinguish between the types of data technical and practical concerns about using a portable computer for ELD being transferred. both QR codes and TransferJet dataset exchange because of the threat of

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computer viruses and malware, issues for immediate transfer to officers at the can be no confirmation of compliance associated with encryption software, roadside. Advocates acknowledged the beyond a test that only monitors the regional connectivity issues, operating check value calculations, but did not ability to send data, not its successful systems compatibility, and data transfer believe that this limited security feature receipt by third party systems. best practices. Therefore, enforcement will thwart determined efforts to evade BigRoad stated that data transfer will continue to consist of an official compliance. Advocates recommended mechanisms are only truly verifiable physically observing the data on a that the Agency establish security when there are two endpoints to transfer device’s electronic display. features, which would be shared with between. It is unclear how either the Omnitracs stated that Option 1 certified manufacturers and shielded ELD or the driver could verify transfer presented in Table 5 has no backup from those subject to the HOS mechanisms without extra hardware mechanism should the printer become requirements, namely drivers, carriers, components to act as one of the disabled, and all other options require and third parties servicing those groups. endpoints in the pair. BigRoad two separate backup mechanisms. 2. FMCSA Response commented that some clarification of Inthinc recommended that the the extent and character of verification regulation state that authorized safety FMCSA believes the SNPRM is needed. officials are mandated to accept presented an appropriate number of Omnitracs recommended removing whichever of the seven methods of data options for making the HOS data the self-monitoring requirement on the transfer that the ELD provider has opted available to authorized safety officials. primary data transfer mechanism. To to support. While various commenters had fully verify primary data transfer EROAD recommended that FMCSA substantive technical concerns about the mechanisms, the ELD would require (1) consider implementing a simple generic options, the Agency continues to believe two Bluetooth radios to test, transmit, report format as a transition to using that—with the exception of TransferJet and receive (in the case of Bluetooth); eRODS software. FMCSA could require technology and QR codes—the proposed and (2) two USB 2.0 connections and an the ELD solutions to generate and send options remain viable and cost-effective. interconnect cable to test, transmit, and enforcement data not only in a raw data However, FMCSA does believe that receive over the USB 2.0 connections (in format, but also in a simple generic limiting the combinations of data the case of USB 2.0). Since there are report format—an enforcement view of transfer types to two types, local and both primary and backup transfer the ELD data/records. This could be a telematics, and combined with a backup mechanisms, this added hardware secure PDF file with a small number of option, will make the data transfer to expense and complexity is not feasible. relevant statistics. This option will be authorized safety officials clearer. easily implemented in the interim while FMCSA believes that today’s rule’s data 2. FMCSA Response States adopt eRODS software, and such transfer mechanism options suit the FMCSA believes the data transfer a report could be viewed on any device needs of many business operations of options provide a practical way to with ability to read PDFs. Because ELDs motor carriers, the daily needs of provide RODS information to will have the capability to send raw drivers, and the needs of authorized data, the States will always be free to authorized safety officials. It is expected safety officials as well. Additionally, all that the ELD providers will be testing adopt eRODS software and develop or ELDs are required to have a backup procure additional software to display data transfer options before certifying method for the authorized safety official their devices with FMCSA. If the the information in their own way. to verify HOS compliance. FMCSA also BigRoad stated that the only authorized safety official is unable to believes that by not prescribing one requirement is that ‘‘an authorized receive or open the electronic file, this specific standard, cost is kept lower and safety official will specify which would not, in and of itself suggest that providers can provide ELDs that are able transfer mechanism the official will the ELD system that transmitted the file to meet the requirements of this use,’’ meaning that they can select any was non-compliant. The driver would rulemaking, including the security of the backup methods without then need to present the RODS standards. supporting the primary method information to the authorized safety The Agency considered IT security themselves. In particular, this could official at roadside, either on a display concerns and the potential need for mean that although a device supports a screen or a printout. FMCSA does not additional hardware to implement the primary mechanism such as Bluetooth, remove the requirement to self-monitor. options. FMCSA does not believe that the safety official might only ever FMCSA will use its Web site to there are concerns about cross- choose the backup USB 2.0 mechanism. accommodate ELD testing in support of connectivity and security concerns The SNPRM provides no guidance or today’s rule. This site will accommodate requirements for data transfer support about portable devices. All ELDs will provider registration, allow approved on the devices used by authorized safety meet the same minimum standards; ELD providers to register their device officials. BigRoad also stated that there is no reduction in security for with the Agency and act as single source inspections should require that the ELD portable devices. site for: ELD registration keys, information be shown on the display of HH. Data Transfer Compliance authentication keys, authentication the ELD. Verigo stated that the SNPRM Monitoring files, data formatting and configuration provided too many options. The backup details and data testing (end to end) method of file transfer from the ELD in 1. Comments to the 2014 SNPRM with approved third parties. This site CSV format should be limited to USB Drivewyze requested clarification on will also include an ELD Interface 2.0, QRC, or NFC. Advocates cautioned the scope of a data transfer test given Control Document, specifically written against allowing the introduction of any that this test may occur without the for ELD providers and service providers. unnecessary intermediaries in the presence of a receiving roadside FMCSA is currently in the process of maintaining and transferring inspection system or that the receiving development stage of modifying this site HOS data. To prevent data corruption, system may only support a limited in preparation for today’s rule and plans the Agency must require that the most number of transfer mechanisms. to have a registration site available and recent 24 hours as well as the previous Without a full suite of connectivity tests operational for ELD providers by rule’s 7 days of operation be stored in the ELD that cover all transfer mechanisms, there effective date.

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II. Printing successful way, due to the environment limit developing entirely new back of the vehicle. office technology, significantly drop 1. Comments to the 2014 SNPRM training times, and not take trucks out 2. FMCSA Response In the SNPRM, FMCSA explored of service. options that would require a printer Today’s rule requires the ELD to be The MPAA stated that the most during roadside inspections. FMCSA able to provide certain data elements to effective solutions to enable meaningful, also proposed to require an ELD to be an authorized safety official at roadside all-electronic RODS for production able to present a graph grid of a driver’s using either a display or a printout as drivers, and others similarly situated, daily duty status changes—either on a backup methods to the electronic may be either: (a) A greater emphasis on display unit or on a printout—for the transfer of data. If drivers or motor truly portable ELDs that accompany current 24-hour period and the previous carriers want to avoid printers, they drivers between vehicles and motor 7 days. have the option to present a display that carriers; or (b) a more prescriptive rule Proposed section 4.10.2.4, Printout, includes the data elements required by that standardizes ELD inputs and (section 4.8.13 in the today’s rule) laid the regulation. outputs and methods of data transfer. out the data elements that had to be The specifications of paper size in the The American Pyrotechnics included in the printed reports for the SNPRM were based upon the presence Association stated that, absent readily authorized safety official at roadside. It of a QR Code on the printout. Because available ‘‘plug and play’’ devices that also specified that print paper must be QR codes are not an acceptable form of can be rented on a short-term basis, it at least 2 inches wide and 11 inches in data transfer, FMCSA has removed the would be extremely difficult for its height, or on a roll of paper that could specification for minimum paper size members who use rentals for a very be torn when each individual printout and specified a minimum size of 6 limited time each year for commercial was complete. inches by 1.5 inches for the size of the purposes, to comply with the mandatory CHP recommended that ELDs possess graph grid on the printout, in today’s ELD requirements. BigRoad generally printer capabilities. Because of agencies’ rule. For the display, FMCSA has not supported allowing portable devices. encryption software, signal made specifications on font or size Verigo asked if the rule language transmission, signal coverage, and requirements. Today’s rule requires a covered netbooks and laptops. different operating systems, CHP stated performance standard specifying that Omnitracs noted that the rule would that it may be problematic to use the display must be reasonably viewed require data that are not available unless software for ELD dataset exchange. CHP by an authorized safety official without the driver is logged onto a specific CMV. anticipated that enforcement would entering the commercial motor vehicle. Inthinc recommended that an ELD used continue as usual, i.e., an official for oilfield equipment be ruggedized, physically observing the data on a JJ. Portable ELDs and not just an ordinary tablet. Zonar device’s electronic display or the data 1. Comments to the 2014 SNPRM asked how a portable device could work being faxed to an inspection facility. if it was removed from the vehicle This limitation creates an enforcement The SNPRM did not address before it was started. The Truck Renting situation that requires the official to portability of ELDs. Many commenters and Leasing Association (TRALA) conduct an enforcement action at a later addressed the possibility of allowing similarly stated that there are provisions time, once the faxes are received, or portable devices to serve as ELDs. in the rule that contradict the assertion execute an enforcement action without Except for the safety advocacy groups, that the devices will be truly portable. a printout. the commenters generally supported For example, proposed 49 CFR BigRoad stated that portable printing allowing the use of smartphones, 395.26(h) would require that, when the devices such as photo printers might tablets, or computers as ELDs. vehicle’s engine is powered up or use non-standard paper sizes such 4″ x The Limousine Association and J.J. powered down, the ELD would 6″ or 5″ x 7″. Such printed documents Keller noted the prevalence of smart automatically record the data elements would easily be as legible as the allowed devices and the cost-savings involved in set out in § 395.26(b)(1) through (8). But 2-inch roll, but would not be at least 11 using them as ELDs. J.J. Keller if a device is actually portable, there is inches in height or on a roll. BigRoad supported the rule language as currently a possibility that it would not be in the believed that FMCSA should modify proposed, which allows multi-purpose vehicle, or not attached to the vehicle this requirement so that drivers are able devices to be mounted, with a secure e- engine, when the vehicle was powered to choose the smallest printer that is logging application that cannot be used up. TRALA stated that the Agency suitable for printing legible ELD records while the vehicle is in motion. J.J. Keller should ensure that the requirement that with a minimum paper width of 2 wrote that a requirement to lock the the ELD be ‘‘integrally connected’’ to the inches. device in its entirety, however, would CMV’s engine does not jeopardize the Continental stated that a 2010 survey discourage the use of multi-purpose portability or transferability of ELDs indicated that over 50 percent of CVSA- device technology for e-logging. among vehicles and/or customers. certified inspectors did not have the YRC stated that FMCSA should allow Generally, safety advocacy groups equipment to receive and manage flexibility in the type of device used for opposed allowing ELDs that are not electronic files at roadside. A compliance—including allowing the use wired to the engine. Commenters requirement for a printout of the HOS of a Bluetooth device that would avoid believed the use of portable ELDs that graph grid showing the same monthly cellular charges and would use are not directly synchronized or information contained in the paper logs Wi-Fi networks. YRC wrote that some connected to the vehicle engine reduces is a proven, reliable, and cost-effective companies have invested heavily in a the effectiveness of the rule and the technical solution. Inthinc, OTA, and handheld device that, while not security of the system. PeopleNet recommended that printing tethered to the engine, could be used to not be an option. PeopleNet stated that track city pickup and delivery drivers’ 2. FMCSA Response the majority of current AOBRD duty status and location. Commenter FMCSA acknowledges the safety suppliers agree that the print option stated that leveraging an existing device advocates’ concerns about the use of would be a significant cost to the offers companies the opportunity to portable devices. However, the Agency industry and difficult to implement in a build on that investment and would has concluded that it would be

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inappropriate to prohibit the use of such Some commenters had questions ELD creates an undue financial burden technology in today’s rule because all about who would pay for the EOBR if on the motor carrier. Commenter ELDs will be subject to the same the driver were an owner-operator, or believed the cost of purchasing the technical specifications in the appendix owned the CMV and worked for a motor devices, installation, monthly service of this rule. carrier. OOIDA stated that some motor fees, and driver training would be FMCSA relies upon a performance- carriers require the use of their systems excessive. These costs would be based standard that allows flexibility in and take payment for this use from the incurred for all vehicles even though the market place, including the use of owner-operators’ paychecks; OOIDA logging would only be required in certain smart phones and tablets, believed the drivers are being over- limited circumstances. provided they have a means of charged for the use. OOIDA believed The California Construction Trucking achieving integral synchronization. this made owner-operators function Association questioned FMCSA’s cost- In its effort to create a minimum more like employees of a motor carrier benefit analysis as well as the estimates standard that is not too expensive or as they would be connected to a specific of CMVs and drivers that will ultimately complex, FMCSA has not required ELDs system. be covered by this rule. Commenter wrote that FMCSA has calculated tens to be ruggedized. However, the Agency 2. Comments to the SNPRM does not prohibit more durable devices of millions of hours in savings The 2014 SNPRM proposed a new for industries that may require them. attributable to drivers no longer needing technical standard for ELDs. It to complete paper RODS, despite XI. Discussion Of Comments Related to addressed concerns of harassment FMCSA being aware that the majority of Costs and Benefits through both technical specifications drivers are not compensated for ODND and procedural requirements and A. Cost and Analysis—General time. The commenter believed that prohibited a motor carrier from engaging while some calculated time savings may 1. Comments to the 2011 NPRM in harassment as defined in the be present—especially on the fleet proposed rule. It kept the same The 2011 NPRM proposed a mandate management side of the equation— population of RODS users that would for the use of an ‘‘EOBR’’ that met the assigning a dollar value to the time need to transition to ELD use as was technical specification in the 2010 drivers spend completing paperwork is included in the NPRM, subject to a EOBR rule. Under this proposal, an example of government manipulating limited exception for drivers requiring FMCSA’s recommended option would data to justify a regulation. RODS no more than 8 days in any 30- NPGA stated that the cost impact from have required all motor carriers whose day period. This SNPRM analyzed an ELD mandate, particularly for those drivers were required to keep RODS to several options within the proposal, who have demonstrated an excellent use EOBRs, subject to a limited resulting in annualized net benefits safety record, does not justify the exception for drivers requiring RODS no from negative $355.5 million to positive benefits. Moreover, the commenter more than 2 days in any 7-day period. $493.9 million. stated that it is not clear there is any The NPRM, however, analyzed several Most of the commenters on this issue correlation between the use of ELDs and options comparing them to the current disputed some aspect of the analysis a decrease in CMV crashes. It cited the HOS regulations as well as the then and its assumptions. OOIDA noted that decline in crashes between 2004 and proposed HOS rule. The net benefits the statute is silent regarding who will 2008 as an indication that trucking was ranged from $418 million to $891 bear the burden of paying for mandatory becoming safer absent ELDs, as well as million. ELD use—the driver or the motor the safety record under waivers during Many commenters stated that the carrier. If the burden is placed on the winter of 2013–14. industry has had many financial owner-operator drivers or small fleet For small business less-than-truckload challenges recently, and could not owners, OOIDA believed that the cost (LTL) carriers, the NMFTA stated that handle an added expense. Commenters poses a very heavy burden. For owner- the proposed ELD rule will require the also stated that the CMV industry has operators, any additional financial additional cost of hiring more personnel seen dramatic increases in safety and burden may make their continuation in to manage and maintain new therefore did not need the stress of what the trucking business impossible. information systems equipment and they perceived as a costly rule. Referring OOIDA stated that a cost-benefit software. LTL small businesses are to the new costs on the industry, OOIDA analysis that does not address the concerned that they do not have the called the proposal the ‘‘proverbial crucial question of what type of financial wherewithal to comply with straw that breaks the camel’s back.’’ organization will shoulder the burden of such obligations. The association stated Several commenters to Regulation these costs cannot support a reasoned that the cost/benefit assessment weighs Room had concerns about the cost to regulatory judgment. OOIDA also against the application of the rule over upgrade their equipment. Commenters commented that FMCSA states, without a much broader segment of short-haul predicted costs being passed on to support and unrealistically, that operations than acknowledged by consumers, drivers losing income and financing for the equipment costs will FMCSA in the proposed rule. work, and the costs for goods being be available in the market. However, driven up, ultimately hurting the this is conditioned on ‘‘if the carrier has 3. FMCSA Response economy. Other commenters raised good credit.’’ FMCSA emphasizes that this concerns about financial inequality and The AGC stated that, while FMCSA rulemaking does not differ from other said that the proposal was lacking regulations apply only to interstate rulemakings the Agency has undertaken because it relied on a ‘‘one-size fits all’’ operations, most States will follow suit with regard to industry compliance model. An OOIDA member said that and adopt the rules for intrastate costs and how costs are accounted for in there would be a decrease in service operations. If States adopt this rule, business relationships between motor quality. A commenter stated that the ELDs will be required in almost all carriers and any independent drivers Cost Benefit Analysis should be re- vehicles with a rating of 10,001 pounds working for them under a contract. The calculated on a true EOBR, not a or more, which includes 1-ton pickups task before the Agency is to move technology that incorporates functions and 1-ton and up work trucks. Requiring forward with a safety regulation of an FMS. the drivers of these vehicles to use an requiring the use of ELDs while leaving

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to the private sector the contractual FMCSA does not believe that small will cost you greater than to not comply arrangements necessary to address the businesses will have to add personnel to using paper RODS.’’ costs for purchasing, installing and manage their ELDs, and the Multiple commenters stated that the maintaining the ELDs. The calculation requirements for motor carriers to cost of the EOBR used in the cost benefit of the cost benefit analysis does not take manage their drivers’ time have not analysis was overestimated, as the into account who bears the cost of ELD changed with this rulemaking. The basic market for EOBRs is broader than purchase and installation. In the case of ELD performs minimal HOS recording FMCSA considered in the NPRM. They carriers that require that their functions. Adoption of this automated maintained that the market will expand subcontractors use a particular ELD process will result in simplified HOS once there is a mandate, further driving system, FMCSA also leaves it to the compliance management. down costs. One said that ‘‘it is probable market to determine how these costs are that FMS vendors will offer a logs-only shared between companies and drivers B. Costs Associated With ELDs solution,’’ thus reducing the cost through their contractual agreements. 1. Comments to the 2011 NPRM dramatically. ATA believed that the We note, however, that to the extent proposed rule did not require an carriers that purchase ELDs in large Based on extensive research and investment beyond a basic system. numbers receive volume-related modeling, the NPRM assumed that A commenter criticized the cost discounts from the provider, those ‘‘[t]he annualized cost for a motor estimates used, saying that they were savings might be passed along to carrier that does not currently use an too generalized, and did not account for independent drivers who may assume FMS or other ‘EOBR-read’ system ranges the budget or size of the motor carrier. some or all of the purchase cost. from $525 to $785 per power unit (PU).’’ A number of commenters stated that the In today’s rule, FMCSA requires a A number of commenters, including hourly rates used were too high. device that needs to perform only OOIDA, maintained that EOBRs are Another commenter stated that the minimal HOS recording functions. costly, do not benefit the trucking useful life of an EOBR should be about There are several technical requirements community, and have no practical or 3 years. Many commenters compared focusing on the concern of driver safety application. Other commenters the cost of purchasing an EOBR to the harassment by motor carriers. While the questioned if the cost is commensurate cost of a paper log book, which they standards allow manufacturers to with the benefits from the use of the estimated to be less than $10 per month. develop and motor carriers to use an EOBR by carriers with a strong safety Other commenters stated that the cost of FMS with additional features and record. One commenter said that the use an EOBR would be less than the cost of functions, the technical specifications of the EOBR provides FMCSA with data, other common equipment on CMVs, like included in today’s rule allow the but provides minimal benefit to the stereos or citizen’s band radios. market to develop a compliant device at carrier. Another commenter said that OOIDA thought that including fleet a low cost. FMCSA used currently any data collection by EOBRs, other management systems with EOBR available devices, whose functions are than what is strictly required by HOS functions in the analysis was ‘‘simply similar to the minimal requirements in compliance, is an unnecessary expense incorrect’’ as the fleet management the rule, to determine costs and benefits. and a burden on small business owners. systems do not necessarily incorporate There is no support for the rulemaking’s This commenter also said that any the EOBR function. OOIDA also thought more expansive impact on the industry, savings to truckers from collecting other FMCSA’s estimates of repair costs were on the economy, or on service that some information should not be included in too low. commenters suggested. DOT’s cost-benefit estimates. Interstate CMV drivers and a subset of 2. Comments to the SNPRM intrastate CMV drivers are subject to Commenters believed that EOBRs might In the SNPRM, FMCSA took a very FMCSA HOS regulations in 49 CFR part provide large motor carriers a financial conservative approach to the cost of an 395. Although FMCSA only has the advantage over small carriers and ELD. It analyzed the Mobile Computing statutory authority to directly regulate owner-operators. Platform 50, a higher-end FMS, and interstate CMVs, States must adopt A number of commenters, including included installation, hardware costs, compatible regulations as a condition of trade associations and carriers, provided and monthly fees. However, by relying Federal MCSAP funding. This rule will specific information on the costs of an on performance standards and only impose the ELD requirement on EOBR or implementing an EOBR prescribing minimal requirements, interstate CMV drivers currently mandate for their company or industry. FMCSA allowed for use of a basic ELD required to keep RODS; however, J.B. Hunt stated that it thought there was that would satisfy the rule. The SNPRM intrastate drivers indirectly affected opportunity for the devices to become estimated an average cost of $495 per were included in the final rule analysis increasingly affordable, while staying in CMV on an annualized basis where the of cost and benefits because they will be compliance with the requirements of the range is from $165 to $832 per CMV on required to comply with compatible 2011 NPRM. Another commenter stated an annualized basis. In the SNPRM, State rules. There is nothing in this ELD that EOBRs are not financially FMCSA analyzed a range of devices, the rule that requires States to extend the burdensome, and models exist that do most expensive one being $1,675 and ELD requirement beyond motor carriers not have real-time components. The the least expensive provided for free as already required to retain RODS. National Association of Chemical part of a monthly service agreement. For purposes of assessing the value of Distributors, however, was concerned FMCSA found that time savings to the driver’s time savings as a result of that there would not be sufficient drivers and carriers from filling out, this rule, FMCSA assumes that a EOBRs available, which would drive the submitting, and handling paper can driver’s time is valuable whether or not cost up. Some commenters provided exceed these annualized costs. FMCSA that driver receives an hourly wage for reasons for using an EOBR, including estimated that 4.6 million inter- and their time. In the rule, we value the time improvements in HOS compliance. intra-state drivers were subject to HOS when the driver should be on duty at an Knight said, ‘‘if you are a fleet or an and 3.1 million were required to keep hourly wage rate for his or her time, operator who does not comply with the RODs. excluding benefits. This is common HOS rules, it is true that investing in a A carrier estimated the cost to install, practice in Federal cost benefit analyses. system to electronically monitor logs maintain, monitor, and replace ELDs at

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over $100,000 per year for its 200 believed that the ELD mandate will not account for the initial cost of set-up, trucks. This did not include the cost of increase the market from 50,000 units including iPhones/tablets and activation employee’s downtime when the ELD is per year to around 3 million units in the fees. A driver believed that the not working, the penalties, and mandate year and will attract additional economic factor will drive a large inactivity at the job site because the load suppliers and competition. This will percentage of owner/operators out of does not make it. The Association of bring costs down. In addition, business or they will sacrifice Independent Property Brokers and Continental commented that the truck maintenance to meet these regulation Agents stated that its research indicates and bus manufacturers will offer ELDs costs. The driver wrote that the cost of that there are options available that as a standard product, further lowering ELD repairs included in the costs, and range from a reasonable, one-time fee of the costs of acquisition and installation the economic impact of necessary a few hundred dollars to an even of the systems. Based on its experience equipment for enforcement personnel smaller set up fee with a reasonable in other countries, Continental wrote has only been ‘‘loosely’’ estimated. monthly fee equal to a basic cellular that highly tamper resistant ELDs can be Knight stated that opponents’ phone service bill. It doubted that a few made available to motor carriers for less argument that the cost of using an ELD hundred dollars increase in truckers’ than $500 per unit, while ELDs with an is higher than using a paper log is not costs would have a significant impact. integrated thermal printer are already the proper way to frame the issue and The ABA stated that the SNPRM does available for purchase in the United is intentionally misleading. The not account for all of the costs that bus States for $500. It criticized FMCSA for question must not be purely about the operators will bear with the including in its estimated operating cost to complete a log; it must be about implementation of the ELD rule. The costs of $25 in monthly fees per ELD the cost to comply with the rules. For commenter wrote that bus operators are (for wireless data extraction) since a fleet to assure a level of compliance required to pay separate charges for FMCSA does not require that ELDs using paper logs commensurate with the monitoring the ELD system and a per- include wireless communication level of compliance assured by use of an driver fee for the system. Even small technology. Continental wrote it is ELD, Knight commented, ‘‘it does and operators are obligated to pay a $25 inappropriate to factor in costs related would cost much more to use a paper monthly service charge and a $25 per- to features that are not required by the log.’’ To assure compliance, the driver fee. The ABA commented that all rule, thus, monthly fees should be commenter wrote that a carrier must bus operators will have to add staff to excluded from the cost calculation. invest considerable resources to collect ensure that the operator is in Similarly, a safety group noted that over the logs, the supporting documents, and compliance with the rule. The ABA 90 percent of carriers operate with six then to audit them against each other. predicted that costs will mount each or fewer power units, yet FMCSA The ELD automates the collection of year. included the yearly cost for adding logs and the auditing of driving activity. AGC stated that purchase and electronic HOS monitoring to an FMS. It is that automation that makes the ELD installation of ELDs will be far more Only the larger carriers will use an FMS more cost effective to fleets. Knight expensive than retaining paper RODs; and most of them already pay for HOS wrote that a paper log is less costly than anecdotal accounts from a sampling of electronic monitoring. Since this cost an ELD only when you do not invest the members who have researched the costs will only be assumed by a very small necessary resources to audit those paper suggested that FMCSA estimates fall percentage of carriers, the commenter logs, especially against reliable vehicle short of the actual costs. While the costs wrote it should not be added as a position history, which is only possible of the devices themselves would be general cost of ELD yearly use. with some form of telematics/GPS significant, the commenter believed that Verigo stated that the annual record technology on the truck. It noted that, additional overhead would increase keeping costs for motor carrier clerical even for the owner-operator, there is a costs significantly. AGC wrote that staff of $120 per driver to handle and cost benefit associated with the ELD. FMCSA’s estimates do not appear to file RODS does not appear to include Advocates questioned whether the include the additional costs for data any allowance for the appropriate cost to the industry represented by plans, training, programming, and validation, measurement, and coming into compliance with the law support. Because there tends to be management practices to determine should be included in these substantial turnover of drivers in the ongoing compliance of drivers. Verigo calculations. It stated that the industry construction industry, AGC held that commented that examples for proper is already required to comply with HOS the training costs alone will be HOS compliance management taken requirements and has been for many significant. from industry best practices and carrier years. The costs associated with HOS The NPGA estimated, based on excellence programs indicate a higher compliance are costs that should have FMCSA’s figures, that the startup costs cost than reported in the proposal. been borne by the industry regardless of of purchase and installation alone Conversely, business case studies the ELD requirement. Advocates held would approach $8 million for the 9,000 following the implementation of that the cost side of the cost-benefit trucks in their industry. For the propane electronic log management systems have analysis for this rule should not be industry, regular monitoring would add consistently revealed the cost of encumbered simply because some in the another $180,000 annually; even if compliance management, including industry have, for decades, violated the three-fourths of the drivers of the 9,000 truck mounted data terminal hardware, HOS rules, and will now be forced to act transport trucks needed training, it to be 30 percent lower than manual responsibly and in compliance with would cost the industry nearly compliance management procedures long established rules of conduct. $122,000. The commenter wrote that not used for paper logs. Advocates also stated that FMCSA all motor carriers, particularly those A number of commenters compared must reconsider the justification for considered small businesses, possess the very low cost of purchasing paper including in the cost estimates for the the type of technology needed to logbooks to the cost of ELDs. They ELD both the unquantified costs to a comply with the ELD mandate. Those provided a wide range of estimates for limited number of motor carriers that who do not would also incur significant ELD implementation, from about $800 have FMS with no electronic HOS startup costs for purchasing new to $6,000 per truck. A commenter monitoring, as well as the highly computers, file servers, etc. Continental believed that FMCSA’s estimate does overstated printer cost. Advocates

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believed that those cost figures must be criticized the Agency’s estimate of the minutes. In addition, to the extent that substantially reduced in accordance total number of CMV operators who OOIDA’s comments concerning driver with the realistic use by multi-vehicle would be affected by the rule, noting turnover costs are based on the premise fleets and current pricing for that FMCSA had reduced its estimates that drivers will always be financially inexpensive printer equipment. The of affected drivers. The California responsible for the purchase and failure to reflect more realistic cost Trucking Association believed that installation of ELDs, we note that estimates has led the Agency to FMCSA’s analysis had given ‘‘little OOIDA did not identify the source of its conclude that certain options are not thought to the totality of CMVs operated information underlying this assumption, cost beneficial and therefore beyond freight hauling operations.’’ nor is the Agency aware of any data that underestimate the net benefits of all the OOIDA claimed that FMCSA based its could be reviewed independently to options presented in the SNPRM. cost benefit analysis on an estimate of validate the claims. The UMA stated that FMCSA should 4.3 million drivers in FMCSA-regulated FMCSA made an effort to consider, include in the cost analysis the adverse operations. However, OOIDA wrote that, and reduce, the costs of overhead. effects this rulemaking has on new in the ICR for the HOS rule (79 FR Because the technical requirements of equipment acquisition and fleet 35843–44 (June 24, 2014)), the Agency this final rule have been changed, there modernization. It commented that lowered the number of drivers covered is no longer a requirement to use any keeping passengers in older under the HOS rules from 4.6 million to wireless communication capabilities motorcoaches and compelling groups to 2.84 million—a reduction of 38 (e.g., telematics or email), eliminating use alternative vehicles, such as private percent—and estimated that 10 percent this monthly cost. These basic ELDs do passenger automobiles and vans, could of those drivers currently use electronic not require monitoring, data plans, or delay the desired results and potentially HOS technology. programming support; FMCSA has increase fatalities. The George reduced the cost of ELDs to reflect that. 3. FMCSA Response Washington University Regulatory FMCSA has considered the cost of Study Center wrote that FMCSA should In today’s rule FMCSA estimates the repair, fleet modernization, and useful consider the effect of the SNPRM on annualized cost for an ELD that must life in its cost analysis. driver compensation and small carriers. support one of two options for As explained in the RIA, the use of OOIDA stated that FMCSA greatly electronic transfer. The first option is a ELDs will significantly reduce the underestimates the cost of the telematics type ELD. We estimate a total paperwork and recordkeeping burden regulations, taking into account driver annualized cost of $419 for an ELD with associated with the HOS regulations. and equipment turnover. If a driver buys telematics. The RIA prepared for the Drivers’ time spent completing RODS a new truck, OOIDA wrote, he or she SNPRM assumed an annualized device and forwarding RODS to their will have to buy a new ELD or pay to cost of $495, which FMCSA employers while away from the motor transfer his existing unit. If a driver acknowledged was on the high end of carriers’ terminals will be reduced by moves to another carrier, the driver will the range of costs of existing units. The $558 and $65, respectively. Further, the have to modify equipment to meet the $495 figure cited by OOIDA is therefore RIA estimates that the savings in clerical requirements of a new carrier. no longer relied upon by the Agency. time spent retaining paper RODS and OOIDA questioned FMCSA The reduction in the estimated eliminating the need to purchase paper assumptions on cost savings. It stated annualized cost for an ELD with log books is $144 and $42, respectively. that logs will still need to be checked telematics, from $495 to $419, is largely This amounts to a total annual and stored. More personnel may have to attributable to the reduction in purchase paperwork savings of $809 per driver. be added to interpret new information price of the device from $799 to $500. The rule does not mandate specific from the ECM and GPS synchronization, The second option is a local transfer training requirements for drivers in to maintain the equipment and software, method type ELD (ELD with USB 2.0 connection with ELDs. While the RIA and perform repairs and software and Bluetooth). The estimated includes training costs for drivers, these updates. annualized cost of an ELD with USB 2.0 are not anticipated to be different from OOIDA stated that, according to and Bluetooth is $166. The lower price existing training related to paper RODS. FMCSA statistics, driving past the 11th of these units is a reflection of their New drivers currently need to be trained hour accounted for only 0.9 percent of limited FMS functionality rather than a on paper RODS instead of ELDs. HOS violations in 2009. If the automatic decline in either the manufacturing or FMCSA expects that motor carriers will detection of the 11-hour violation is an component costs. For estimating the continue to monitor their drivers’ ELD’s only compliance and enforcement cost of the final rule, the Agency records for compliance with HOS. advantage over paper logbooks, this conservatively assumed that drivers Additionally, there is no real-time should be the starting point for any would purchase an ELD with telematics, requirement, and much of this could be benefit calculation of ELDs. OOIDA however the Agency did reduce the done electronically. Further, electronic commented, however, that FMCSA baseline price estimate of these units to records are less expensive, and take less assumes, without explanation or reflect the market trend towards more time to manage, compared to paper support, a far greater level of benefits for basic FMS designed primarily for ELD RODS. HOS compliance through ELDs. OOIDA functionality. Some ELDs are portable and can be believed that FMCSA should Although we do not specifically transferred between vehicles. For acknowledge the limited capability of account for the cost of ‘‘driver turnover’’ example, one of the least expensive ELDs and measure the safety benefits to as described by OOIDA, the RIA for the devices on the market, Continental’s be derived from that limited capacity. If final rule does factor in the cost of VDO Roadlog which costs $500 and the Agency performed such an analysis, installing, removing, and repairing does not require monthly fees, can be it would be clear that the costs of ELDs ELDs. The Agency notes that some simply unplugged from the ECM from in economic, privacy, and safety terms independent drivers will have the one CMV and plugged into the ECM of far outweigh whatever marginal benefits option to purchase a portable ELD, another CMV. A permanently installed are identified. which fall at the lower end of the price ELD can be sold or purchased with the Both OOIDA and the California range and which typically can be CMV it is installed in and reflected in Construction Trucking Association removed and reinstalled in less than 30 the sale price for the vehicle.

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Additionally, as Continental pointed out costs to install ELDs in new units it EOBR records more rapidly. in a comment, some manufacturers purchases that are manufactured after Furthermore, motor carriers would have might start offering ELDs as a standard June 1, 2012.’’ Werner stated that under experienced compensatory time-saving feature. the rule as proposed, carriers who and administrative efficiencies as a The assertion of some commenters voluntarily complied with the April result of using EOBR records in place of that the Agency reduced the number of 2010 rule lose the benefit of having paper RODS. The level of savings would CMV drivers affected by the rule is complied early. have varied with the size of the carrier incorrect. In fact, the number of CMV implementing the systems (larger drivers subject to the rule increased 2. Comments to the SNPRM carriers generally experience greater from 2.8 million, the number cited in In the RIA for the SNPRM, FMCSA savings). the SNPRM, to 3.4 million in today’s estimated that the FMS upgrade would In the NPRM, FMCSA estimated rule. The increase is primarily due to be significantly cheaper than the annual recordkeeping cost savings from the inclusion of intrastate long-haul purchase of any new device. FMCSA the proposed rule of about $688 per drivers subject to RODS, which we estimated annualized costs to all driver. This was comprised of $486 for added due to the likelihood of state- voluntary adopters of AOBRD systems a reduction in time drivers spend level adoption of similar requirements to upgrade their systems: $174 per CMV completing paper RODS and $56 in order to obtain MCSAP funding. The to add electronic HOS monitoring submitting those RODS to their basis for determining the number of services to FMS that have this employers; $116 for motor carrier staff CMV drivers impacted by the rule is capability. Some carriers that have to handle and file the RODS; and $30 for further explained in the Agency’s already adopted AOBRDs would have to elimination of expenditures on blank discussion of the Paperwork Reduction replace their older devices 2 years after paper RODS for drivers. Act in Section XIV, J, of today’s rule. the effective date of the final rule. One trade association stated that the The Agency rejects OOIDA’s premise FMCSA estimates that the annualized reasonable cost stipulation in the that the automatic detection of the 11 cost of replacing an older AOBRD is HMTAA would not be met, and that the hour violation is the ELD’s only $106 per unit. rule would cost over 1 billion dollars. A enforcement and compliance advantage PeopleNet agreed with FMCSA’s commenter believed that the paperwork over paper log books.26 FMCSA’s assessment and, based on the details savings estimate is ‘‘fictitious’’ and Roadside Intervention Model, described provided in the SNPRM, agreed that inflated. This commenter stated that in Appendix E of the RIA to this rule, only software updates would need to be large fleets getting this advantage are directly measures the relationship made on the majority of the deployed already using EOBRs, but they will have between crashes and violations using devices. This would include those to purchase new equipment to fit the roadside inspection, traffic enforcement, manufactured before 2010 as well as new EOBR requirements, and small and safety data. This model represents those manufactured after. fleets ‘‘will see nothing but increased a major improvement in the Agency’s cost and no savings.’’ estimates of the safety benefits of ELD 3. FMCSA Response The Specialized Carriers and Rigging use. The RIA prepared for today’s rule Association believed the EOBR costs to estimates the annualized cost of be so large that they would not be offset C. Cost and Analysis—Updating replacing existing devices will be by paperwork reductions. Other Existing Systems between $93 per device for FMS commenters wrote that that the 1. Comments on the 2011 NPRM upgrades and $128 per device for paperwork benefits of the rule would not be realized because some drivers The NPRM proposed a 3-year AOBRD replacements. Because FMCSA carefully studied the industry and would keep a paper log despite it not compliance date and a 3-year being required. A motor carrier said that grandfathering period for devices looked at several devices representing a significant fraction of the AOBRDs in the rule increased the paperwork meeting the standards of 49 CFR 395.15 burden due to the requirement to that could not be updated to meet the use, the Agency thinks that the majority of FMS devices that exist today could monitor supporting documents and new (now vacated) standard in § 395.16. HOS compliance, cost of the EOBR, cost The NPRM assumed a cost of $92 to easily meet the minimum specifications of this rule with relatively inexpensive of potential violations of not update an existing device to be maintaining a system, and the compliant with those specifications. upgrades. Information materials from many providers indicate that ELD requirement to submit documents Though UPS voiced support for the within 3 days. EOBR mandate, it also ‘‘estimates that functionality is available for their FMS. the total cost of bringing . . . [its] fleets FMCSA based the estimated cost to add 2. Comments to the SNPRM into compliance with the proposed rule the functionality, which it used in the The Paperwork Reduction Act would be approximately $25,520,000. In RIA, on real price data from providers. analysis presented in the SNPRM was addition, UPS would need to incur the D. Paperwork Analysis similar to that in the NPRM. FMCSA still assumed that under HOS 26 OOIDA’s assertion that, according to FMCSA 1. Comments to the 2011 NPRM regulations, most CMV drivers would be data, driving past the 11th hour accounted for only 0.9 percent of HOS violations in 2009 is incorrect. The proposed rule would not have required to fill out RODS for every 24- In fact, FMCSA stated that 11th hour violations are required additional reporting, hour period. The remaining population present in around 0.9 percent of total driver recordkeeping, or other paperwork- of CMV drivers would be required to fill inspections. The rate of out of service violations for related compliance requirements out time cards at their workplace any reason related to HOS was about 5.8 percent in 2009, which implies that 11th hour violations beyond those already required in the (reporting location). Motor carriers must were present in 16 percent of inspections in which existing regulations. In fact, the NPRM retain the RODS (or timecards, if used) there was an out of service order due to HOS (0.9/ was estimated to result in paperwork for 6 months. FMCSA estimated the 5.8). Other data consistently indicate that 11th hour savings, particularly from the annual recordkeeping cost savings from rule violations are a significant reason for HOS out the proposed rule to be about $705 per of service violations. Therefore, the Agency elimination of paper RODS. Compared reasonably expects that ELDs will have a significant to paper RODS, drivers could have driver. This would comprise $487 for a impact on reducing these violations. completed, reviewed, and submitted reduction in time drivers spend

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completing paper RODS and $56 log. With a paper log, there really are ELD users, will lead to a reduction in submitting those RODS to their not HOS limits for that kind of operator/ paperwork. employers; $120 for motor carrier operation. FMCSA recognizes that short-haul clerical staff to handle and file the ATA stated that, as a result of the drivers exempt from keeping RODS RODS; and $42 for elimination of illusory document cap and the would get none of these savings. MAP– expenditures on blank paper RODS for unnecessary burdens of proving mid- 21 mandates the installation of ELDs for drivers. shift ODND time, it is not surprising CMV drivers required to use RODS. The George Washington University that FMCSA does not expect this FMCSA’s preferred option, adopted in Regulatory Study Center stated that, rulemaking to produce a reduction in today’s rule, is consistent with the according to the ICR submitted to OMB, the overall document collection and statutory mandate and maximizes the transition from paper RODS to ELDs retention burden. ATA writes that this paperwork savings. will reduce the time spent complying is at odds with the intent of the Although not all drivers are paid by with the HOS regulations by 68.33 HMTAA. Since the passage of HMTAA the hour, their time does have value, million hours per year. The commenter in 1994, FMCSA has maintained a broad and their time saved has value. It is maintained that FMCSA should commit view of what constitutes a supporting common practice for benefit/cost to gathering data to evaluate whether document and thus continued to impose analyses to value either time savings or these predicted time savings an unusual and uncustomary burden on delays for individuals in terms of an materialize, either through a the trucking industry. hourly wage rate. The hourly wage a representative survey of drivers and A carrier, which mistakenly believed person requires to work reflects the value they place on their time. carriers, or by encouraging feedback that the paperwork reduction was the FMCSA notes that the obligation on a under the Paperwork Reduction Act . result of the reduced number supporting Greyhound noted that this is the third motor carrier to monitor its drivers’ documents, noted that the SNPRM rulemaking within the last few months compliance with HOS is not new. (See states a paperwork reduction in one in which FMCSA proposes to impose In the Matter of Stricklin Trucking Co., section, and then lists required substantial new recordkeeping Inc., Order on Reconsideration (March supporting documents that must be requirements on passenger motor 20, 2012)).27 retained in another. Commenter wrote carriers. The other two were the Lease that government agencies require E. Small Business and Interchange of Vehicles: Motor carriers to keep all documentation for Carriers of Passengers NPRM and the 1. Comments to the 2011 NPRM IFTA, the International Registration Commercial Driver’s License Drug and Plan, the Internal Revenue Service, etc.; The Agency examined its registration Alcohol Clearinghouse NPRM. data and found that 96 percent of, or Greyhound suggested ways to reduce therefore, it believed that there is no reduction of paperwork overall. just over 19,000, interstate passenger the recordkeeping burdens of the carriers have 47 power units or fewer. proposals so that passenger carriers can 3. FMCSA Response The 2011 NPRM did not propose any keep an operational focus. exclusions or exceptions based upon FedEx did not believe that the FMCSA believes that this rulemaking meets the HMTAA’s ‘‘reasonable cost’’ business size. However, the Agency did supporting documents rule would create request comment on a possible phased- any paperwork relief. FedEx believed standard for HOS supporting documents. Almost all AOBRDs and in compliance date to help small the proposed rule is burdensome and businesses. that the new requirement that carriers ELDs electronically transmit log data. This eliminates a source of burden OOIDA commented that 2011 NPRM retain 10 supporting documents far RIA made assumptions about the safety outweighs the reduction of one paper associated with drivers and carrier staff handling paper records, and eliminates practices of large carriers. OOIDA RODS per day. For a carrier like FedEx commented that small businesses could Ground, the proposed supporting the cost of the paper. ELDs automate many of the steps needed to make RODS not realize any reduction in cost, as documents rule would generate at least paperwork is not considered to be a 80,000 documents per day (assuming entries, thereby saving time. On a daily, per-driver basis, these savings may seem source of cost, since their only revenue that the carrier collects 10 supporting is from operating. Since many drivers documents for each driver’s 24-hour small, but multiplied by the number of drivers that would be required to use are not paid by the hour, OOIDA day). Over the course of 1 year, the believed that the analysis in the RIA carrier would need to collect, review, ELDs over the course of a year, the savings are significant. In today’s rule, should not use hourly estimates of the and file approximately 29 million value of their time. OOIDA also stated documents. FedEx wrote that carriers FMCSA extends the period that a driver has to submit records to a motor carrier; that because many drivers or motor will also be required to implement new carriers may not trust EOBRs, they systems to store a potentially large both RODS and supporting documents are to be submitted within 13 days. might keep manual logs anyway, which number of documents so that they can would mean no paperwork savings. be ‘‘effectively matched’’ to the FMCSA clarifies that any ELD data that has been reconstructed is a part of OOIDA thought that FMCSA had not corresponding driver’s HOS records. included an explanation of benefits in FedEx asked FMCSA to address what the HOS records and must be retained as part of the record. the 2011 NPRM. motor carriers should do with a driver’s Though they support the objective of Neither the NPRM nor the SNPRM reconstructed logs if the ELD is repaired this rule, AMSA stated that it is too claimed any paperwork reduction and the original logs are retrieved from much of a burden on their segment of benefit related to supporting documents. the device. FedEx suggested that only the industry. Commenters to Regulation The Agency understands that the ELD-created logs should be retained Room stated that the cost benefit supporting documents are kept in the if they can be retrieved from the device analysis included savings for the ordinary course of business for purposes or ELD provider. reduction of clerical costs, but small Unless an ELD is required, Knight other than satisfying FMCSA’s stated that a driver may not understand regulations. The removal of the 27 Available in Docket FMCSA–2011–0127, that he or she is saving the 10–15 requirement to retain paper RODS, http://www.regulations.gov (Document No. minutes a day spent filling out the paper which will no longer be required for FMCSA–2011–0127–0013).

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businesses would not realize those ABA believed that the majority of bus ‘‘ruggedized.’’ PeopleNet and J.B. Hunt costs. A carrier stated that compliance operators seeking ELDs will be the anticipated that printers would be costs are two to three times as expensive smaller bus operators. They will be able stolen unless they are built-into the for the small firms. Some commenters to obtain ELDs only after the larger, vehicle. The commenters believed that also stated that small businesses would more financially able carriers receive maintaining and storing operational not see a return on investment like them. ABA believed that the prices of supplies for the printer would be larger businesses would. Several ELDs, particularly for smaller operators difficult and an added cost. commenters suggested that the rule with little purchasing power, are more ATA noted that the vast majority of should apply only to carriers with a likely to rise rather than fall. manufacturers do not market a device threshold number of power units. Other with internal printing capability; to offer commenters stated that there should be 3. FMCSA Response it would require redesigning their a waiver process for small businesses to Because the majority of regulated hardware. In addition to adding cost, be exempted from the rule. entities are considered small businesses, ATA believed that requiring paper The NFIB said that this was a punitive FMCSA did not propose a special printers would put a chilling effect on measure for small business, impacting waiver process, a threshold for usage voluntary ELD adoption in advance of them disproportionately. This based upon size of the motor carrier, or an industry-wide mandate. If FMCSA organization suggested an exception for a blanket exception for small were to require all devices to be capable vehicles based on weight that they businesses. FMCSA believes that there of producing paper printouts, the thought would benefit local service are benefits to be realized from this rule ‘‘software upgrade’’ claims for existing vehicles used by small plumbers, for businesses of all sizes, and, as with systems would no longer be true and electricians, and other service providers. most technology, new uses and abilities those using such devices would find themselves holding obsolete hardware. 2. Comments to the SNPRM will continue to emerge to fit the needs of the end users. ATA understood law enforcement’s FMCSA did not re-analyze a phased- interest in facilitating roadside in compliance date in the SNPRM. F. Cost of a Printer verification of HOS compliance. MAP–21 requires a 2 year compliance 1. Comments to the 2011 NPRM However, it asked if it makes more sense date following publication of the rule. to impose a prescriptive data transfer The Agency did, however, increase its The 2011 NPRM did not propose or requirement on close to 3,000,000 CMVs commitment to outreach among small analyze the cost of an ELD with a and drivers, or to require that businesses. As stated in the SNPRM, printer. approximately 13,000 certified CMV ‘‘[t]he Agency recognizes that small 2. Comments to the SNPRM enforcement officials have the means to businesses may need additional accept records electronically by one of information and guidance in order to The 2014 SNPRM analyzed options several required options. comply with the proposed regulation. for ELDs that included a mandatory To assess the cost of printers on To improve their understanding of the printer. FMCSA sought comment on the commercial vehicles, J.B. Hunt and proposal and any rulemaking that feasibility and accuracy of the benefit PeopleNet. considered a number of would result from it, FMCSA proposes and cost estimates associated with this different products, including the HP to conduct outreach aimed specifically requirement. The requirement for Officejet 100 Mobile Printer, priced at at small businesses. . . . [The] purpose printers with each ELD would increase $309, not ruggedized, which was the would be to describe in plain language ELD costs by about 40 percent. One of cheapest. Applying the cost for that the compliance and reporting the two ELD-like devices that the printer to the 2,840,000 CMV drivers requirements so they are clear and Agency considered as baseline devices that FMCSA stated would be affected by readily understood by the small entities offers the printer function. the ELD requirements of this that would be affected.’’ (79 FR 17683, Advocates stated that FMCSA erred in rulemaking, the initial purchase of Mar. 28, 2014) its estimate of how much a printer printers would cost the industry ABA characterized the bus industry as would increase ELD costs. It identified $877,560,000. If each printer used one small, generally family owned, and a recent article that cites a basic ELD color cartridge and one black cartridge without the financial resources to with an integrated printer retailing at a annually, the costs would be an undertake a major addition to their total combined cost to an owner- additional $164,663,200 per year. If the equipment. Taking the average ABA operator of approximately $600. printer has an expected life cycle of 5 member’s equipment roster as a guide, Advocates wrote that similarly low ELD- years, the annualized replacement costs the commenter believed that this plus-printer costs, as well as low-cost would be $175,512,000. The proposal would add approximately thermal printers that are commonly commenters wrote that the cost of $6,600 to the cost of a small business found in taxi cabs and in hand-held equipping every weigh station and CMV operating a bus company. portable devices used in restaurants and enforcement cruiser in the country is At a June 2014 meeting of ABA’s Bus elsewhere, can readily be found by minimal when compared to equipping Industry Safety Council, the question contacting suppliers and on the Internet. CMVs with printers. While printers was asked of approximately 100 bus Advocates held that it is likely that should be optional, these commenters operators: How many operators have some models could meet performance maintained that the cost of requiring ELDs on their coaches? About 10 requirements for use in ELD-equipped them on all CMVs is cost prohibitive. operators did. Assuming that the CMVs at a far lower cost than the PeopleNet was also concerned with the percentage of operators with ELDs is the Agency used in its estimate for the security of printed log records, which same industry-wide, only 10 percent of SNPRM. could be lost, stolen, or damaged. the industry uses ELDs. ELD-use is Other commenters, including ATA, Continental believed it would have confined to the larger bus operators, PeopleNet, and J.B. Hunt, were been appropriate to add external printer those operators who need many ELDs concerned with the costs associated costs to ELDs prior to the mandate for their buses and whose purchasing with requiring a printer. To survive in taking effect. However, Continental power will allow them to take delivery the environment of a truck cab, an wrote that it is not appropriate to do so of ELDs faster than smaller operators. external printer would need to be post-mandate, given that industry will

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choose to use the much more cost- Adding the cost of printers to each CMV H. Basis for Evaluating Safety Benefits effective option of installing ELDs with would raise the cost of this rule to the 1. Comments to the 2011 NPRM an integrated thermal printer. point the benefits would not outweigh Continental also stated that FMCSA’s the costs. ATA believed that compliance with estimated cost of $500 for an external the HOS regulations will lead to better printer is on the order of five times more 3. FMCSA Response safety, stating that ‘‘. . . data generated than current market costs; there are in the course of evaluating the agency’s In today’s rule, FMCSA requires ELDs many portable thermal printers Compliance, Safety, Accountability to have either the capability to transfer available for $100. As a reference point, program shows a strong correlation Continental noted that taximeters with data to roadside inspectors between hours of service compliance an integrated thermal printer cost telematically, via Web services and and favorable safety performance (e.g., between $150 and $350. The commenter email, or the capability to transfer data low crash rates).’’ CVSA commented wrote that FMCSA added the cost of an locally, via Bluetooth and USB 2.0. The that the cost benefit analysis external printer to all ELDs when final rule also requires ELDs to have underestimated the number of lives looking at the Options, which was either a printer or display as a backup saved and overestimated the cost of the fundamentally flawed because carriers method for displaying data to law EOBR by at least 50 percent based on would acquire more cost-effective enforcement. FMCSA believes that information the organization has solutions (i.e., ELDs with an integrated leaving the decision to use a display or received from providers. printer). The cost of an integrated printout to the ELD providers and the Some commenters criticized Agency printer in an ELD is less than $10, motor carrier will allow individuals to studies or claimed that the Federal considerably lower than the cost of an make the most cost effective decision for government had no evidence that external printer. The VDO RoadLog their particular operations. By allowing EOBRs will help reduce fatigue. Commenters believed that more data or ELD, currently available on the United alternative methods for electronic studies are needed, including studies to States market, costs $500 and has an transfer of information, coupled with measure fatigue and issues related to the integrated printer. two backup mechanisms (display or A safety coalition stated that security of information. Some printout), the Agency anticipates that enumerating costs for a separate printer commenters said that there was no link ELD providers will offer alternative is unnecessary as ELDs with an between HOS compliance and safety. integrated printer are available at less products, responsive to motor carrier The National Limousine Association than FMCSA’s estimated cost for an ELD needs. stated that the now-vacated 2010 final lacking an integrated printer. While G. Tax Credits and Relief To Off-Set rule was based on insufficient data and some carriers will choose options that Costs that the information in the 2011 NPRM best fit their operational needs did not reflect enough research on the regardless of cost, the commenter 1. Comments to the 2011 NPRM ‘‘non-trucking’’ part of the industry. believed that the least expensive system Commenters to the Regulation Room that complies with ELD performance The NPRM did not propose any tax questioned the validity of existing requirements for CMVs should be used credits because the Agency does not methods for measuring fatigue. Some for FMCSA’s cost estimates. It have the statutory authority to deal with were concerned that fatigued driving is commented that inflation of costs such matters. However, several a political issue and the rule was not reduces net benefit calculations, and commenters, including FedEx and the based on sound evidence. One of these may be used by some to justify slowing Specialized Carriers and Rigging commenters also requested that the cost or preventing an expedient ELD Association, suggested that FMCSA of an upgrade for security reasons be compliance process. offer a tax credit for motor carriers using included in the proposal cost. Knight stated that the most cost EOBRs, to offset carriers’ costs. FedEx OOIDA stated that no published data effective approach is not to require some related this request to the use of EOBRs supported the rulemaking and believed kind of printout in the vehicle. The by Mexican motor carriers and drivers. that the degree of non-compliance was National Limousine Association The Truckload Carriers Association not known. OOIDA commented that the opposed printers. Schneider opposed a wanted direct financial relief from any Cambridge Study, commissioned by requirement to supply printers in the EOBR mandate. FMCSA, showed ‘‘no documented vehicle because the cost will be improvement in compliance or safety,’’ prohibitive and far outweigh the 2. Comments to the SNPRM and stated that non-driving time was benefits. Schneider wrote that the being ignored. OOIDA also criticized benefit of this rule is the paperwork The SNPRM did not propose any tax FMCSA for relying on public comments reduction and requiring a printer would credits, nor were there comments. when no data exist. defeat that purpose. Another group 3. FMCSA Response OOIDA said that the RIA was based stated that law enforcement officers on underlying flawed research, and that could be equipped with a dedicated FMCSA does not have the authority to FMCSA lacked evidence to link benefits portable printing device that the officer offer any tax credits or direct financial to this rule. It claimed that the RIA for could hold with a USB 2.0 plugged to relief. While FMCSA equipped each the NPRM was inadequate due to the the ELD and print the data, as almost all vehicle approved for use in the United use of data from 2003, as well as ‘‘false ELD manufacturers will accommodate a States-Mexico Cross-Border Long-Haul assumption[s]’’ made about fatigue. It USB 2.0. Trucking Pilot Program with monitoring also wanted to know the credentials of The Alliance for Driver Safety and equipment, FMCSA owned the the people making assumptions about Security believed that while carriers monitoring equipment and had access to the 2003 data and claimed that the certainly have the option of using an National Highway Transportation Safety and control of the data. The pilot ELD with a portable printer, they should Administration’s Fatality Analysis program has ended, and FMCSA no not be required to do so. OTA stated Reporting System (FARS) data longer funds the cost of those electronic that relying on the industry to provide contradicted the data used in the RIA. a printed copy is not cost effective. monitoring devices. OOIDA stated that FMCSA failed to

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show the connection between fatigue- drivers to cheat on driving time. Knight activities will enable a determination of related crashes and EOBRs. pointed out that paper logs are often whether the driver is complying with OOIDA stated that the ‘‘Agency has exploited and that the industry is in HOS rules. OOIDA stated that ELDs will never attempted to demonstrate, urgent need of a universal ELD mandate give inspectors and people concerned through examples or detailed to ensure compliance with existing about highway safety a false sense of explanations, the benefits of EOBRs over rules. Knight did acknowledge, safety and driver compliance when, in paper logs during this rulemaking or however, that ELDs cannot prevent fact, ELDs will permit up to 11 hours of EOBR 1.’’ OOIDA also said that FMCSA crashes or prevent drivers from violating unlawful driving a day without showing ‘‘use[d] assumptions/staff opinions HOS rules. The carrier noted that a violation. In addition, OOIDA argued rather than data or facts to try to drivers must be individually that the safety analysis did not take into measure safety benefits gained from accountable for following the rules and account that ELD use will increase EOBRs.’’ OOIDA further stated that safe driving. pressure on drivers to violate speeding FMCSA had previously ignored analysis Several drivers spoke from personal and other local ordinances and engage and data because they ‘‘[did] not show experience about how the use of ELDs in other unsafe behavior. Advocates improvements in safety.’’ improves safety and compliance with stated that a poorly crafted ELD The Specialized Carriers and Rigging HOS requirements. One driver stated regulation would provide drivers and Association also believed that data that the system will remind him to take carriers with the opportunity to failed to establish a link between a break an hour in advance. The driver continue to falsify logs electronically, crashes and EOBR use. noted that this helps with safety by thus enabling drivers to work, or to be 2. Comments to the SNPRM allowing him enough time to find a safe forced to work, excessive hours place to stop. The driver also pointed resulting in fatigue and the associated Several commenters addressed the out that with electronic logs, his fleet increase in crashes, injuries and benefits of ELDs. The Alliance for Driver manager can see the hours he has and fatalities. Advocates expressed concern Safety & Security stated that the ELD better plan his loads. Another driver that the proposed rule does not ensure mandate will improve compliance with noted that his ELD keeps him from that drivers or carriers cannot Federal HOS rules and ultimately having log violations because it notifies reduce driver fatigue and the number of manipulate the process of securing the him of his exact time status. The driver data and transferring it from the ELD to highway crashes caused by driver also stated that the ELD provides a fatigue. Alliance noted that the leading roadside inspectors and enforcement definite benefit in trip planning and officers, thus circumventing the purpose freight transportation companies have load booking, and enables him to found that the ability to record accurate and intent of the regulation. determine if he has enough time to Quoting from FMCSA’s April 2014 driving records decreases HOS complete a load legally. The driver also report on the safety benefits of ELDs,28 compliance violations, reduces driver stated that he is more productive. fatigue, improves inspection reports to the UMA noted the American Another driver stated that the electronic Transportation Research Institute stated the Compliance, Safety, and log system forces drivers to be better trip Accountability program, and improves that the correlation between EOBRs and planners, which makes them better safety is weak. The UMA pointed out Behavior Analysis and Safety drivers. The driver also pointed out that Improvement Category scores. that the ELD mandate is a significant ELDs improve safety by giving drivers proposal for passenger carriers, and that AMSA stated that the proposed ELD reminders of when they need to take a requirements would significantly help a direct and measurable correlation 30-minute break and when the end of between reducing crashes is a necessity to enhance HOS compliance, reduce their 14-hour tour-of-duty is paperwork for motor carriers and that goes to the very core of the approaching. Agency’s mission. Freightlines of drivers, and increase CMV safety. NAFA Numerous commenters stated that the America, Inc., stated that putting ELDs Fleet Management stated that use of use of ELDs will not improve safety or in CMVs will not get to the root of the ELDs will improve compliance with HOS compliance. OOIDA noted that the problems in the industry, but instead HOS regulations, which is important primary criticism of paper logbooks is make drivers and carriers more because of the strong correlation the ease with which a driver can desperate to survive and endanger between compliance with HOS ‘‘falsify’’ time, which can lead to fatigue themselves, their businesses, and the regulations and safe operations. ELD and unsafe driver. OOIDA believed an provider BigRoad, Inc. stated that is has ELD is unable to provide any public safety. An individual commenter pointed out found that drivers and motor carriers appreciable improvement to the that FMCSA has yet to show any direct who use electronic HOS solutions have accuracy of a driver’s RODS and correlation between ELD use and increased awareness of, and compliance compliance with the HOS rules over reduced crashes, or any other kinds of with, HOS requirements. paper logbooks, and submitted several safety benefit. The commenter also J.B. Hunt pointed out that many of the hypothetical RODS constructed to pointed to OOIDA’s comments that the opponents of mandatory ELDs demonstrate why, in its view, the use of commented about the ‘‘flexibility’’ of ELDs does not result in improved HOS proposed rule as written will not paper logs and how they will not be able compliance because drivers would still improve highway safety, does not fully to run as many miles and earn as much be able to mask HOS violations by address the issue of driver harassment, money if they are held accountable for manually entering false duty status into and does not fulfill the requirements their driving time and breaks. J.B. Hunt the ELD. OOIDA stated that the ability prescribed by Congress. Another stated that these opponents are of ELDs to automatically record the individual pointed out that ELDs will acknowledging that they are not length of time a truck has been driven not prevent drivers from lane deviation, complying with the current regulation, has no appreciable value over paper following too closely, or any other poor which provides justification for logbooks if drivers can continue to enter driving habits. The commenter mandating ELDs. Knight stated that an incorrect duty status while they are 28 In the docket for this rulemaking, docket electronic logs that record drive time not driving. OOIDA further stated that number FMCSA–2010–0167–0900. http:// and are tamper proof, to the degree only an accurate record of both a www.regulations.gov/#!documentDetail;D=FMCSA- proposed by the SNPRM, do not allow driver’s driving and non-driving 2010-0167-0900.

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recommended better driver training Agency to be careful about who is on its identify whether the driver is in regulations, infrastructure maintenance, advisory boards, who is giving advice compliance with the HOS rules’’, the and improvements to the national on the potential benefits of ELDs, and Agency’s field inspection personnel highway system, ‘‘share the road’’ who stands to benefit from the passage report that the bulk of their time spent education for both commercial drivers the proposed ELD mandate. on enforcement is in determining and passenger vehicle drivers, and a whether or not the driver has accurately 3. FMCSA Response greater focus on truck parking and entered driving time on the paper log. increasing the number of rest stations. In the SNPRM, FMCSA used a The use of ELDs would minimize this Implementing ELDs without addressing different approach from that in the 2011 concern. these issues would strain an industry NPRM to estimate the number of crashes Rather than respond directly to that is already seeing a major shortage mandatory ELD use will prevent. Based OOIDA’s hypothetical scenarios, we in drivers. The commenter pointed out on an analysis of carriers using ELDs, think it is more useful to illustrate how that shippers and receivers detain trucks and using the peer-reviewed Roadside ELD use could have easily detected during loading and unloading without Intervention Model,29 FMCSA was able actual HOS violations recently consideration for HOS requirements to estimate the reduction in crashes documented in FMCSA’s field reports. because they have no oversight over from mandatory ELD use. This estimate For example, an FMCSA inspector their actions. used a sample period from January 2005 reviewed a driver’s paper log, which Several commenters pointed to what through September 2007, which showed that he was within the they believe is the real reason for the contained 9.7 million interventions. permitted HOS and that he had taken ELD mandate—i.e., big trucking Generally, ELDs bring about the required breaks. However, when the companies trying to put smaller improvements in safety by making it inspector compared the paper log to the trucking companies out of business. The difficult for drivers and carriers to driver’s time/date stamped toll receipts, California Construction Trucking falsify drivers’ duty status which in turn it was apparent that the driver was at Association stated that mandating ELDs deters violations of the HOS rules. And least 500 miles from the location shown will not achieve the safety benefits increased compliance with the HOS on his log for a particular day. The calculated by the Agency, and that the rules will reduce the risks of fatigue- inspector concluded that the driver only true beneficiaries of an ELD related crashes attributable, in whole or simply could not have reached that mandate would be those intent on in part, to patterns of violations of the location by taking the required 10-hours chasing competitors from the market HOS rules. Part of the improvement in of off-duty driving time and by under the guise of safety. Herbi- safety also involves motor carriers travelling at a speed of 60 miles per Systems, a lawn care company, stated accepting the responsibility of hours as ‘‘documented’’ on the log. Had that there is no public demand for ELDs, reviewing the electronic records and an ELD been installed in this driver’s and that some large trucking firms want supporting documents. Motor carriers truck, the device, by automatically to raise the cost of doing business for are required to ensure their drivers capturing driving time, mileage and small trucking firms in order to comply with applicable safety location, would have made this HOS minimize competition. An individual regulations and motor carriers that violation readily apparent to the commenter stated that ELDs are not strive to do so will now have a more FMCSA inspector. necessary for medium and small carriers effective tool for reviewing drivers’ Another recent example of an actual because the drivers do not alter their RODS. HOS violation involved a driver leaving paper RODS due to potential penalties. A more detailed explanation of the Arkansas just before noon on a Saturday The commenter also stated that the big process FMCSA employed to determine to reach the first of several retail trucking companies who are pushing for crash reduction benefits, with a clear, delivery locations in California the the ELD mandate have sister companies full accounting of assumptions and following Monday morning. The with stock ownership in companies that procedures, is in the RIA for this driver’s paper RODS showed 30 hours produce ELDs. rulemaking. In response to these of driving time, arranged to Klapec commented that ELDs are no comments, FMCSA also undertook a accommodate the required 10-hour more reliable than paper logbooks, and study about the potential safety benefits breaks. The log also showed that the the ‘‘safest thing to put into a truck is of the ELD, and discusses that study and driver spent about an hour unloading at a well-trained, experienced driver.’’ comments received about it in today’s each of the retail locations in California. Klapec noted that experienced drivers rule, in Section XII, K, of this preamble. However, when the FMCSA inspector will leave the industry, causing an OOIDA submitted several compared the GPS-based asset tracking increase in crash and fatality rates. It hypothetical RODS constructed to record with the driver’s log, it was believed the Agency is discriminating demonstrate why, in its view, the use of apparent that, between Arkansas and against small carriers, and stated that ELDs does not result in improved HOS California, the driver stopped for only large carriers know that the ELD compliance because drivers would still brief periods, most of which ranged mandate will cause an exit of many be able to mask HOS violations by from 15 minutes to 75 minutes. The small carriers from the marketplace manually entering false duty status into longest period the driver stopped because they will be unable to sustain the ELD. We note that the examples driving did not exceed 3 hours during the high costs of doing business. Klapec OOIDA provides rely on the premise a total of 34 hours of actual driving said that the Vice President of ELD that drivers using paper RODS time. Asset tracking also showed that provider XATA Corporation sits on two accurately record their driving time and the periods of unloading took longer of the three boards for FMCSA and that location. FMCSA’s enforcement than the hour that the driver logged. XATA Corporation stands to gain a experience demonstrates that is not As with the previous example, an ELD potential windfall of business if the ELD always the case. Contrary to OOIDA’s would have immediately revealed the mandate goes through. Klapec also assertion that ‘‘knowing how long a falsification of the driver’s RODS. The pointed out that ATA’s members driver has operated a truck rarely helps Agency thus believes it is reasonable to include big, national carriers that are conclude that drivers would be less eager to see small carriers, like Klapec, 29 See Appendix E of the RIA to today’s rule, likely to engage in, and carriers would become extinct. Klapec urged the available in the docket. be less likely to encourage, the types of

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HOS subterfuge that ELDs would readily carriers and providers to meet the procedure to remove a listed detect. We also believe that ELDS will requirements in the time provided. certification from the Web site—in order facilitate better trip planning by drivers Although ATA, UMA, and CVSA to provide additional assurance to motor and carriers, resulting in fewer supported the certification process, carriers that that the ELDs listed on the unintentional HOS violations. While OTA opposed it, arguing that it would provider registration Web site are FMCSA acknowledges that ELDs will expose carriers to considerable risk. If a compliant. The procedure includes as a not prevent every crash or ensure that device is later held to be non-compliant, preliminary step an opportunity for the every driver will follow the HOS rules the carrier would have a fleet of vehicles ELD provider to cure any deficiency. It to the letter, we do believe that by that might need to be taken off the road. also protects an ELD provider’s interest reducing HOS violations, ELDs will OTA stated that FMCSA should provide in its product. result in less fatigued and less assurance that a carrier is not at risk of dangerous drivers, thereby achieving the having to replace a registered product or Today’s rule provides the statutory mandate of MAP–21. have its logs declared invalid. OTA was specifications for the data elements and related HOS data transfers that are In addition, to the extent that OOIDA concerned that FMCSA might refine the focuses on ELDs as the sole means of regulations, which could require mandatory to develop a compliant ELD monitoring HOS compliance, that focus expensive modifications, in the appendix to subpart B of part 395. is misguided. In addition to retaining reprogramming, or replacement of the This includes all aspects of the file RODS, motor carriers have long been first equipment purchased. structure, formatting, and naming required to retain supporting Drivewyze noted that FMCSA has not conventions. However, FMCSA documents. Today’s rule continues that anticipated the use of intermediaries to understands that providers and motor requirement while also providing support ELD providers’ internet- carriers need assurance that an ELD connected data transfer needs; the specific guidance as to the type of meets FMCSA’s requirements. FMCSA intermediaries may also need to register documentation that must be retained. In will provide guidance to providers that and conform to FMCSA standards. ATA addition, today’s rule requires drivers to will contain the tools providers will stated that providers contend that the make available supporting documents in need to ensure that their ELD meets the cost of the upgrades will be high and their possession upon request during a technical specifications. However, it that the existing hardware will need to roadside inspection. Enforcement will be the responsibility of each be tested. personnel as well as carriers rely on provider to ensure that its product FedEx, UMA, CVSA, and an ELD these documents along with driver’s complies with the RODS file data provider stated that FMCSA should RODS, to provide a more require each registering providers to use definitions FMCSA provides. comprehensive view of a driver’s FMCSA-prescribed test procedures to While FMCSA does not mandate third workday. provide carriers with some assurance party software requirements, it allows Finally, we also note that, in addition that the devices meet the specific for them, and will provide guidance so to HOS violations, certain aspects of the requirements. CVSA stated that the that providers can evaluate whether behavior OOIDA describes in its certification process must include they are in compliance with part 395. hypothetical RODS are currently resistance against tampering with the Any agents acting on behalf of a motor prohibited under the FMCSRs. For device/system. carrier must comply with FMCSA’s example, FMCSA could cite a motor Several providers raised concerns regulations as well. carrier under 49 CFR 392.6 for about the information that has to be FMCSA provides more information scheduling a run between points in a submitted. Some stated that only major about this process, and the mandatory way that would necessitate speeding. releases should be reported to FMCSA— elements that providers will have to Similarly, § 392.2 requires that CMVs be not every update. Zonar asked if operated in accordance with local laws; ‘‘version’’ refers to hardware or includes submit to FMCSA in order to be listed § 392.3 prohibits driving, and prohibits software, and whether providers will be on the public Web site, in the ICR the carrier from requiring driving, while able to update information posted on notices related to ELD provider the driver is fatigued, ill or the driver’s the FMCSA Web page, and stated that registration. FMCSA released the related ability to remain alert is otherwise providers should be listed in random Paperwork Reduction Act ICR notice for impaired. order. public comment on October 28, 2014 (79 FR 64248). XII. Discussion of Comments Related to Some providers questioned the Procedures, Studies, Etc. requirement to provide the user manual. The elements that providers have to XRS stated that the Enforcement submit are adopted as proposed in A. Registration and Certification Instruction Card should be sufficient; section 5.2.1, Online Certification. User 1. Comments to the SNPRM the user manual may contain manuals are generally available to the proprietary information that should not public. Given required submission, FMCSA proposed that ELD providers be publicly available. Omnitracs FMCSA does not believe that providers would have to register with FMCSA, recommended providing a link to the would include proprietary information certifying that their devices meet the provider’s Web site rather than the that the manufacturer does not want to requirements and providing information manual; this would make it easier to make available to the public. on how the ELD works and how it was ensure that carriers had access to the tested. FMCSA would make much of most recent version. The elements that providers may have that information available on an FMCSA to submit are limited to those included Web site that would list the registered 2. FMCSA Response in the ICR for ELD certification. The ICR providers. FMCSA would develop In today’s rule, FMCSA includes process is separate from the rulemaking optional test procedures, which procedures for provider registration of process, and FMCSA responds to providers could use to ensure their an ELD as they were proposed in the comments on the ELD certification ICR ELDs meet the requirements. In the SNPRM. However, in response to in the notice issued in accordance with SNPRM, FMCSA sought comments on comments, FMCSA is adding section 5.4 the Paperwork Reduction Act on April the certification issue and the ability of to the technical specifications—a 3, 2015 (80 FR 18295).

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B. Compliance Date and Grandfather dates. Knight the Alliance for Driver are installed. ATA and TCA both stated Period Safety & Security, and the NTSB urged that failure to extend the grandfather FMCSA to implement the rule quickly. period for the life of the vehicle would 1. Comments to the 2011 NPRM The American Moving & Storage discourage fleets from making an early The NPRM proposed a compliance Association stated that the compliance investment in ELDs. A non-profit transit date 3 years after the effective date of schedule for mandated ELDs and related provider noted that it has already the anticipated final rule. Motor carriers requirements are appropriate. invested in Mobile Data Terminals and would have been required to install The majority of commenters on this tablets for some of its vehicles, and EOBRs in CMVs manufactured on or issue, however, stated that the proposed asked that FMCSA allow flexibility to after June 4, 2012. Motor carriers that 2-year compliance date should be upgrade current devices to meet the installed AOBRDs before the extended. CHP recommended proposed requirements. compliance date of the final rule would collaboration with private and public The NAFA Fleet Management have been allowed to continue to use stakeholders to ensure compliance dates Association agreed with FMCSA’s those devices for 3 years beyond the are realistic. The UMA stated that proposed 2-year grandfather period. compliance date, for a total of 6 years FMCSA should consider an incremental However, an ELD provider and the after the publication of a final rule. approach. Alliance for Driver Safety & Security The Agency asked for comments on The ABA stated that 3 years is the recommended eliminating the 2-year factors it should consider to determine absolute minimum needed for ELD grandfather provision. The ELD if the compliance date should be implementation in the motorcoach provider stated that it would adjusted (76 FR 5544, February 1, 2011). industry. YRC estimated that under a 2- unnecessarily extend the use of It asked if EOBRs should be phased-in, year implementation schedule, it would noncompliant systems, incentivize some based on the number of power units in have to take approximately 500 trucks a carriers to circumvent HOS a motor carrier’s fleet. month out of service for installation and enforcement, and undermine the ability Several commenters, including CVSA, train 700 to 1,000 drivers a month on of law enforcement to enforce the ELD supported a 3-year implementation the new devices. The National Propane mandate and the HOS rules. The period with a single effective date for Gas Association stated that a 3- to 5-year provider believed it would be difficult EOBR use. The Insurance Institute for compliance deadline is necessary to to determine if an AOBRD was installed Highway Safety believed that the ensure sufficient availability of devices before or after the compliance date. Law compliance date should not be later and that there is enough time to install enforcement will need to be trained to than 3 years. Several commenters them. use both AOBRDs and ELDs, which will contended that the 3-year period is too CVSA and an ELD provider stated that also increase the cost of enforcement. long; others believed that the proposed the grandfather clause should be Knight recommended that FMCSA be 3-year compliance period was too short. eliminated, and that a 3-year more specific in identifying the Some commenters, including AMSA, compliance deadline should be applied conditions for eligibility for the 2-year NSTA, and NPGA, asked for a 5-year to all CMVs. CVSA stated that having grandfather provision. It believed that a compliance period. While a large motor multiple compliance deadlines would ‘‘high percentage’’ of the fleet should be carrier recommended that large motor complicate roadside enforcement and so equipped to be eligible. carriers have additional time, several undermine uniformity. Omnitracs was 3. FMCSA Response large carriers, as well as TCA and ATA, concerned that there could be confusion opposed different compliance dates. with enforcing the grandfather period In enacting MAP–21, Congress AMSA recommended that FMCSA and, therefore recommended a 3-year required the Agency to use a conduct a 2–3 year operational test of compliance deadline for ELD use. compliance date 2 years after EOBRs, providing EOBRs to United Four commenters stated that the publication of the rule. This means that States-based motor carriers under a compliance deadline should be a CMV driver required to use an ELD program similar to the Agency’s North extended to 4 years from the effective will be required to use a certified ELD American Free Trade Agreement pilot date. MPAA suggested that FMCSA 2 years after this rule is published program. delay initial enforcement of its all- unless the grandfathering provision is electronic roadside inspection met. Until this date, existing AOBRD 2. Comments to the 2014 SNPRM requirement or apply the ELD mandate devices or paper logs will be acceptable. Subsequent to the NPRM, Congress to production drivers either 1 year after In today’s rule, FMCSA clarifies that the enacted MAP–21, which required that FMCSA confirms that sufficient RODS compliance date, as well as the the ELD regulations apply to a CMV transfer functionality is available in the grandfather period, is calculated to run beginning 2 years following publication market, or 2 years after the initial from today’s publication rather than of the rule (49 U.S.C. 31137(b)(1)(C)). In implementation of the rule (i.e., 4 years from the effective date of the rule, the SNPRM, FMCSA proposed an after publication). consistent with the requirement of effective date of 30 days after MAP–21. Two-Year Grandfather Period publication of a rule in the Federal For 2 years after the compliance date, Register and a compliance date of 2 Most of the commenters on this issue, today’s rule requires a driver subject to years thereafter. FMCSA proposed that including Roehl Transport, the this regulation to use either an ELD or motor carriers that installed AOBRDs, as International Foodservice Distributors an AOBRD, i.e., a device that meets the described in current § 395.15, before the Association, the Snack Food requirements of § 395.15, which was compliance date of the ELD rule be Association, UMA, TCA, ATA, and installed and that a motor carrier allowed to continue to use those devices OTA, stated that the proposed 2-year required its drivers to use before the for 2 years beyond the compliance date. grandfather period for AOBRDs rule compliance date. FMCSA clarifies installed prior to the compliance date is that the grandfather provision is Two-Year Compliance Date too short. Many recommended that vehicle-based, not fleet-based. Four commenters, including the carriers be permitted to use installed While FMCSA proposed a 3-year NTSB, expressed support for the AOBRDs for the remainder of the grandfathering date in the NPRM, proposed effective and compliance service life of the vehicle in which they mirroring the 3-year compliance date in

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that proposal, FMCSA does not believe 2. Comments to the 2014 SNPRM also like FMCSA to include language in the intent of the statute would allow for FMCSA proposed a new prohibition the rule that defines penalties for a grandfathering date longer than the against harassment, subject to a civil carriers and drivers when evidence of compliance date. Therefore, the rule penalty, for a motor carrier that engages tampering is detected. It supported allows drivers to continue to use in harassment. Harassment would be heavy penalties issued to carriers who grandfathered AOBRDs for 2 years after considered in cases where a motor tamper with or otherwise alter a ELDs the rule’s compliance date. FMCSA carrier is alleged to have required a ability to operate per FMCSA declines to remove or shorten the driver to violate the HOS rules specifications. IBT commented that the SNPRM grandfathering period beyond what was involving the use of the ELD. provides that a motor carrier may proposed in the SNPRM. The Agency Some commenters recommended request an extension of time from believes that some transitional time is enhanced penalties for repeated FMCSA to repair, replace, or service an necessary for ELD providers to produce violations of the ELD requirements. ELD. Unless an extension is granted, a a sufficient quantity of ELDs to meet the Advocates stated that there is no driver could receive a citation for the needs of the motor carrier industry. provision for specific or enhanced malfunctioning ELD. The IBT does not FMCSA does not think that the 2-year penalties to be imposed for violations of support this language, as it would grandfather period will penalize early the requirement to use ELDs. Advocates adopters of logging technology. Motor unjustly penalize the driver for the believed the Agency must specify strong motor carrier’s failure to apply for a carriers currently using AOBRDs will penalties for intentional and service extension correctly. IBT believed have 4 years of use of the devices, unintentional violations that that the driver should only be starting from the publication date of this progressively increase with a responsible for having manually rule; these devices have an estimated subsequent violation and permit an out prepared RODS for the current 24-hour useful service life of 5 years. FMCSA of service order for a carrier, and period and the previous 7 days. Any notes that it has heard from ELD provide for disqualification of a driver citation issued by law enforcement providers during the rulemaking found to have committed a third should be directed to the carrier, not the process, as well as through the MCSAC violation of the ELD requirements. driver where the driver can produce subcommittee on ELD technology, about A coalition of safety groups (Truck evidence, via the driver vehicle their current technologies. The Agency Safety Coalition, Parents Against Tired inspection report (DVIR) or other kept current systems in mind while Truckers and Citizens for Reliable and acceptable means, that he/she notified developing the technical specifications, Safe Highways) stated that carriers and the motor carrier of the malfunction and believes that many existing drivers must have a strong motivation to within the specified 24-hour period. AOBRDs can become ELDs. comply with the new ELD regulation, Inthinc recommended that the Given the obstacles and cost of and serious and meaningful penalties regulations state that law enforcement converting AOBRDs operated under 49 should be identified as part of the officers must ask carriers, not drivers, CFR 395.15, FMCSA believes that it will rulemaking to ensure that the cost of a for non-authenticated driver logs. be necessary to have some overlap in violation is not merely part of doing time where both AOBRD and ELD business. These commenters wrote that, 3. FMCSA Response devices are acceptable. The Agency does unfortunately, there is no provision for FMCSA adopts an approach that not think that this will lead to a delayed penalties in the ELD regulation. They increases drivers’ control over their own enforcement program or inconsistency. believed that FMCSA must remedy this HOS records in order to maximize Other than grandfathering current oversight and include strong penalties transparency and ownership of edits AOBRDs, the Agency does not provide for offenders, with an escalation for being made. All edits to ELD records a phased or incremental compliance repeat offenders such that, by the third will appear with clear authorship. period. violation, an order to cease operation is FMCSA clearly prohibits any kind of The Agency notes that, in today’s issued. ELD tampering or altering. rule, it corrects references to the EROAD supported FMCSA’s The Agency prescribes penalties for compliance and grandfather date. The approach. It commented that the non-compliance with the requirements clock starts at the rule publication date, proposed regulation leaves States with in today’s rule. Civil penalties for rather than the effective date, consistent the flexibility to continue their own violations of regulations addressing with MAP–21. commercial vehicle policies and ELDs will be assessed under Appendix enforcement approaches while allowing B to 49 CFR part 386, and numerous C. Penalties and Enforcement private companies to support the factors, including culpability and 1. Comments to the 2011 NPRM requirements in an open market history of prior offenses, are taken into environment. account. 49 CFR 386.81. Tampering An individual commenter asked who FedEx commented that it is possible with an ELD is also an acute violation would be responsible for paying the that law enforcement will be inclined to under FMCSA’s safety rating process penalty for disconnecting an EOBR write violations for failing to use an ELD under today’s rule. Section VII of device. Another commenter said that if the driver cannot prove at roadside Appendix B to 49 CFR part 385. FMCSA EOBR records should provide drivers that he or she did not complete a log includes a provision that allows the same authorities as a ship’s logs and more than 8 times in the last 30 days. penalties for harassment to be enforced have the same rules against fraudulent In effect, this rule would require these at the maximum levels in order to entries. A commenter stated that the occasional drivers to carry their HOS discourage motor carriers and drivers EOBR will now make it records for the previous 30 days in their from committing violations. In assessing ‘‘institutionalized’’ that driving during a vehicles, directly conflicting with the the amount of a civil penalty, however, break period is a violation of the HOS, requirement that drivers retain logs only the Agency is required by statute to take no matter the circumstances. The for the previous 7 days. certain factors into account. See 5 U.S.C. commenter stated that this would lead IBT supported heavy penalties for 521(b)(2)(D). Thus, the Agency intends to drivers getting HOS violations and carriers who harass and coerce drivers to apply this provision through its losing their livelihoods. to violate HOS regulations. IBT would Uniform Fine Assessment software to

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assure civil penalties are assessed in to act in a manner that violates the HOS actions that violate the HOS regulations. individual cases in a fair manner while rules if the action is within the course This addition, however, does not in any addressing the gravity of harassment of the motor carrier’s operation; (2) the way modify a carrier’s liability under 49 violations at an appropriate level. burden of proof in demonstrating that CFR 390.11. Both motor carriers and drivers are an employee’s action was outside the Carriers are deemed to have prohibited from committing violations course of the motor carrier’s operation is knowledge of regulatory violations if the of the FMCSRs. FMCSA acknowledges, on the carrier; and (3) knowledge of a means were present to detect the through today’s rule, concerns of document in a motor carrier’s violation. (See In the Matter of Goya harassment of drivers by motor carriers possession, or available to the motor Foods, Inc., Final Order (July 7, 2014).30 through the use of ELDs and related carrier, that could be used to enforce the Section 386.30(a) codifies technologies, and believes provisions HOS rules is imputed to the motor administrative case law addressing a addressing harassment appropriately carrier. motor carrier’s responsibility for an target motor carriers for actions affecting Given drivers’ autonomy, ATA stated employee acting within the course of drivers they control. The use of an ELD that a carrier ought to be held liable the motor carrier’s operations. For makes a driver’s HOS records more only in cases where the carrier example, in the case of a driver transparent. Furthermore, carriers using encouraged a violation or, for providing false logs, a carrier is ELDs with related communication undetected violations by an employee, responsible for the driver’s violation components generate records where the government can show that the regardless of the systems it has documenting carrier/driver interactions. carrier failed to perform due diligence established to prevent violations or These electronic records generated in in providing instruction and training to whether it actually detected the the ordinary course of business are the driver on HOS compliance. ATA violation. (In the Matter of Holland covered by the supporting documents indicated that the burden of proof ought Enterprises, Inc., Order Appointing provisions in today’s rule. to be on the government for proving Administrative Law Judge p. 4 During investigations, inspections, HOS violations. (February 13, 2013)).31 This is and safety audits, FMCSA and its State With respect to the proposed consistent with the principle of partners will evaluate the 8 out of 30 provision imputing knowledge of a respondent superior. Id. However, this day threshold for ELD use under today’s document to the carrier, OTA asked concept does not result in strict liability rule. Drivers currently allowed to use what ‘‘available to the motor carrier’’ in that a carrier could argue the driver timecards may continue to do so under means, and to what extent the motor was acting outside the scope of the provisions of 49 CFR 395.1(e). carrier is required to pursue such employment. (See In the Matter of Authorized safety officials may request documents. OTA suggested that the Stricklin Trucking Co., Inc., Docket No. the time cards from the motor carrier carrier should only be charged with FMCSA–2011–0127 (Order on supporting the exception. Section knowledge of a document if the carrier Reconsideration Mar. 20, 2012)).32 395.1(e)(2)(v) requires a motor carrier to receives that document in the regular In terms of the applicable burden of maintain ‘‘accurate and true time course of business. J.B. Hunt stated that proof under § 386.30(b), a motor carrier records’’ for each driver. These records the Agency must define the term claiming that a driver was acting outside must show the time the driver goes on ‘‘available’’ and present a cost benefit the carrier’s operations is in the best and off duty, as well as the total number analysis addressing the paperwork position to establish this fact and will of hours on duty, each day. The lack of burden the new standards place on need to raise the issue as an affirmative a time record for a driver under this carriers. J.B. Hunt also recommended defense under the rule. exception on any given day would that certain statements in the SNPRM be Section 386.30(c), providing that a ordinarily suggest that the driver was modified to make it clear that carriers motor carrier is deemed to have not on duty that day. If an authorized are responsible only for documents knowledge of any document in its safety official discovers that the driver generated and maintained during the possession or available to the motor was in fact on duty, despite the absence normal course of business. carrier for purposes of enforcement of a time record, the motor carrier has 2. FMCSA Response proceedings, is written to preclude a violated § 395.1(e), because it has not motor carrier from ignoring documents The provisions originally proposed as that would assist in monitoring its retained ‘‘true and accurate time § 395.7 in the SNPRM, addressing part records.’’ Appropriate enforcement drivers. Questions of imputed 395 enforcement proceedings, are knowledge are more likely to arise in action may then be taken. FMCSA included as § 386.30 in today’s rule. The recognizes that records relevant to the enforcement of false log violations than provisions are moved to codify the violations of provisions governing evaluation of the 8 out of 30-day enforcement provisions with other rules exception will not ordinarily be supporting documents. The concept of of practice. imputed knowledge is material in available during roadside inspections. Motor carriers and drivers share the determining the effectiveness of a motor However, this factor does not differ from responsibility for complying with HOS carrier’s efforts in monitoring its drivers. enforcement of the short-haul exception requirements under part 395. A motor Generally, a carrier has imputed at roadside, where similarly, on-site carrier’s responsibility for an knowledge if it could have discovered confirmation generally is not available employee’s violation of the HOS rules is violations had it reviewed its internal from records inspection or otherwise. not a new concept; it dates back to the records. (See In the Matter of Transland, D. Enforcement Proceedings Interstate Commerce Commission. Under 49 CFR 390.11, a motor carrier is 1. Comments to the 2014 SNPRM 30 Available in Docket FMCSA–2011–0156, required to have its drivers observe any http://www.regulations.gov (Document No. The SNPRM included a new duty or prohibition on drivers under the FMCSA–2011–0156–0004). procedural provision, § 395.7, FMCSRs. Section 386.30(a) reiterates a 31 Available in Docket FMCSA–2008–0233, Enforcement proceedings. The proposed carrier’s liability with respect to the http://www.regulations.gov (Document No. FMCSA–2008–0233–0006). provision encompassed three concepts, HOS rules. The FMCSA and its 32 Available in Docket FMCSA–2011–0127, providing that: (1) A motor carrier is predecessor agencies have consistently http://www.regulations.gov (Document No. liable for an employee’s acting or failing held carriers liable for their drivers’ FMCSA–2011–0127–0013).

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Inc., Decision of Chief Administrative program, for which FMCSA would fund the United States need to be in full Law Judge (February 16, 2010)).33 the EOBRs, to test the integration of compliance with our HOS rules once Nevertheless, available documents are EOBRs into the CMV fleet nationwide. they cross the border—just like any not necessarily limited to documents a FedEx felt that FMCSA’s agreement to domestic driver. Under this rulemaking, carrier actually uses in its normal course pay for EOBRs in Mexican trucks Canadian and Mexican drivers would of business in ensuring compliance with bolstered its suggestion that the United keep their RODS using an ELD in the the HOS rules. Rather, the standard is States government provide tax credits to same way that United States drivers whether the documents could be used to purchasers of EOBRs to offset their would, unless they qualified for one of determine compliance. (See In the costs. the exceptions. Matter of Roadco Transportation The Regulation Room received a Services, Inc., Decision on Petition for 2. Comments to the 2014 SNPRM remark suggesting that an EOBR helped Review of Safety Rating (December 4, A number of commenters objected to ‘‘keep a driver straight’’ in the face of 2003); 34 see also In the Matter of FMCSA paying for electronic complex rules, and allowed the driver to Stricklin Trucking Co., Inc., Order on monitoring devices for foreign carriers. change from Canadian to United States Reconsideration (March 20, 2012)).35 Some suggested that FMCSA fund ELDs rules with the flip of a switch. However, Section 386.30(c), prescribing the for domestic carriers. Verigo, a Canadian wireless logbook imputed knowledge concept applicable provider, recommended that FMCSA to enforcement proceedings, is not 3. FMCSA Response allow companies in the oil and gas intended to modify a motor carrier’s FMCSA acknowledges commenters’ sector, which operate under an current obligations under the Agency’s concerns about the Agency purchase of equivalent level of safety required by a administrative case law. Thus, in ELDs for foreign motor carriers. The Canadian Oil Well Service Vehicle response to J.B. Hunt’s comment, no Agency emphasizes that the purchase Permit, be exempt from mandatory use new paperwork burden results. In terms was an essential step to ensuring of EOBRs. CVSA commented that of the impact on motor carriers, today’s appropriate levels of oversight during a Canada is pursuing the development of rule neither increases nor decreases the pilot program. FMCSA used electronic an EOBR standard. It recommended that burden associated with supporting monitoring devices with GPS FMCSA make every effort to work with documents. capabilities to monitor the operation of Canada to develop a harmonized vehicles used in the Pilot Program and standard across North America. E. FMCSA Should Not Provide Mexican OOIDA believed that there might be a Motor Carriers With ELDs used the data to identify potential violations. This approach addressed need for a dual mandate for both paper 1. Comments to the 2011 NPRM concerns expressed by members of RODS and EOBRs, absent a Canadian Between October 14, 2011, and Congress and others. mandate. This would add to the costs of October 10, 2014, FMCSA conducted FMCSA owned the monitoring the United States mandate for those the United States-Mexico Cross-Border equipment and had near real-time drivers. The Air and Expedited Motor Long-Haul Trucking Pilot Program (Pilot access to and control of the data Carriers Association, the National Program). The Pilot Program evaluated provided by the electronic monitoring Association of Small Trucking the ability of Mexico-domiciled motor devices and GPS units, 24 hours per Companies, and The Expedite carriers to operate safely in the United day, every day of the week. This will Association of North America (TEANA), States beyond the municipalities and not be the case with the ELDs required responding together, were concerned commercial zones along the United through this rulemaking. about the compatibility of United States States-Mexico border. The Pilot Program The Pilot Program ended in October and Canadian requirements for EOBRs was part of FMCSA’s implementation of 2014 and FMCSA discontinued the because Canada required EOBRs to print the North American Free Trade subscription service used in connection and present a paper log. Agreement cross-border long-haul with the devices. FMCSA no longer 2. Comments to the 2014 SNPRM trucking provisions. As part of FMCSA’s funds the cost of electronic monitoring Klapec stated that Mexican and information gathering process, FMCSA devices for Mexico-domiciled carriers Canadian trucking companies are equipped each vehicle approved for use authorized to operate in the United already taking a share of the trucking by a Mexico-domiciled motor carrier in States. business from small United States the Pilot Program with an electronic The suggestion that ELD’s acquired carriers, and believed that the ELD monitoring device. during the Pilot Program provide foreign mandate would make competition Numerous commenters strongly carriers with a competitive advantage is between small carriers and foreign objected to FMCSA’s funding of without merit. The number of vehicles carriers impossible. An individual electronic monitoring devices for CMVs equipped with ELDs was limited, with commenter stated that FMCSA wants in the Cross-Border Pilot Program. approximately 55 vehicles operating at American truckers to operate like Klapec, AMSA, and FedEx believed that the conclusion of the pilot program. truckers in Europe, despite the different the United States government was Also, foreign carriers are prohibited economic situation between Europe and providing Mexican-based carriers with from making domestic point-to-point the United States. A number of an advantage not available to domestic deliveries within the U.S. FMCSA is not commenters questioned how the rule carriers. AMSA suggested FMCSA in a position to fund ELDs for domestic will apply to Mexican or Canadian institute a 2 to 3-year long pilot carriers and implementing a domestic drivers. pilot program is inconsistent with the 33 Available in Docket FMCSA–2006–25348, Several commenters emphasized the Congressional mandate that the Agency importance of harmonizing the http://regulations.gov (Document No. FMCSA– require certain drivers to use ELDs. 2006–25348–0133). proposed regulation with Canadian and 34 Available in Docket FMCSA–2002–13667, F. International Issues Mexican standards. Greyhound pointed http://regulations.gov (Document No. FMCSA– out that the SNPRM does not address 2002–13667–0005). 1. Comments to the 2011 NPRM 35 Available in Docket FMCSA–2011–0127, the compatibility of the proposed ELD http://regulations.gov (Document No. FMCSA– Under existing regulations, drivers standards with Canada and Mexico, and 2011–0127–0013). from Canada and Mexico who drive in noted that compatibility among the

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three countries is critically important States. The recruiter pointed out that involve violating the HOS rules; for carriers like Greyhound who operate Canadian owner-operators who agree to however, in their view, ELDs could help a large number of daily trips between install ELDs in their trucks to do this stop those violations. A commenter the United States and Canada or expedite work to the United States will stated, ‘‘[a] lot of the fear of EOBRs Mexico. UMA pointed out that there is also be required to use the ELDs for seems to stem from a lack of good significant international traffic (between local work to be compliant with the practices following the HOS [rules] in the United States and Mexico and United States regulations. The recruiter the first place.’’ Canada) involving passenger carriers noted that most of the owner-operators 2. Comments to the 2014 SNPRM and recommended FMCSA complete he spoke to in Canada stated that if the regulatory harmonization prior to full ELD mandate goes into effect they will A number of commenters were implementation of the proposed rule. stop doing expedite work and either do concerned that the rule would affect ABA noted that Canadian motor carrier local work only or retire from trucking their current business practices. authorities have not instituted a change entirely. Continental stated that some carriers are in their regulations in line with the opposed to an ELD mandate because United States ELD proposed rule. ABA 3. FMCSA Response they anticipate that the costs for ELDs further noted its understanding that The Agency emphasizes that this rule will be high; they relate the problems Canadian authorities will wait for does not alter the underlying HOS associated with today’s complex FMS FMCSA to issue its rule before regulations or the obligation of drivers (e.g., system-to-system incompatibility, considering any changes to Canadian to comply with the applicable rules of complex handling, or data privacy laws and regulations. It stated that the the jurisdiction in which they are concerns) to ELDs; and they fear that 2-year compliance period may be an operating. Though FMCSA agrees that ELDs may be a capable tool to enforce insufficient period of time for Canadian- complying with several sets of the HOS regulation (a rule they domiciled carriers to obtain ELDs. regulations can be complex and fundamentally oppose). Continental A Canadian owner-operator stated challenging, the applicable said it is likely that the majority of that FMCSA should exempt Canadian requirements have not been altered. carriers will accept ELDs, assuming owned and operated CMVs from ELD FMCSA requires that Canada- and FMCSA adequately addresses some regulations because FMCSA is not Mexico-domiciled drivers comply with concerns. The commenter said that adopting Canada’s HOS regulations. The the Federal HOS rules while operating FMCSA effectively addressed cost and commenter asserted that the imposition in the United States. data privacy concerns. Continental also of ELD regulations forces the Canadian While FMCSA agrees with the noted fleets that would not benefit from Federal Transportation Ministry to commenter that regulatory the use of FMS functionalities will not enforce United States law on Canadians harmonization would be ideal, North be required to use real-time operating in the United States. American HOS harmonization is not an communications and will be able to use ELD provider PeopleNet requested option at this time. However, the ELDs without monthly fees. further clarification as to how to manage Agency understands that there are Three commenters addressed the harmonization of data for those drivers electronic monitoring devices currently proposed requirements, in §§ 395.8 who transition between United States on the market that have been (a)(2)(ii) and 395.11(b), that RODS and Federal regulations and Canadian or programmed to accommodate the HOS supporting documents be transferred from the vehicle to the carrier’s office intrastate regulations. XRS pointed out rules of multiple jurisdictions. Further, within 8 days. Current regulations in that there are additional data elements under today’s rule, a driver operating in § 395.8(i) require a driver to submit for each duty status change, as well as multiple jurisdictions would be able to RODS within 13 days. FedEx stated that, several additional events, such as annotate the driver’s record of duty like the 13-day time period, an 8-day ignition on, which will need to be status on the ELD to reflect information time period is too long, especially given captured in the harmonization required about periods outside the United States. that the vast majority of logs will be for drivers who travel between Canada Regarding the concern raised by several created using ELDs and the proposed and the United States. entities that Canada requires a printout Two individual commenters ELD rule requires that drivers certify of an electronic log, today’s rule addressed the issue of drivers traveling their daily record ‘‘immediately after the includes a printer option. FMCSA between Alaska and the lower 48 states final required entry has been made or declines to exempt through this through British Columbia and the corrected for the 24-hour period.’’ To rulemaking specialized equipment or Yukon Territory. One commenter noted allow carriers to better manage HOS and vehicles tied to specific industrial that there are different HOS ensure they are not at risk of allowing sector, including CMVs subject to safety requirements for each jurisdiction a driver to operate in violation of regulation under a Canadian Oil Well through which he travels. The § 395.3, FedEx recommended drivers Service Vehicle Permit. commenter stated that it would be should be required to certify and submit impossible for an ELD to function G. Effects of ELDs on Current Business their HOS records to carriers within 24 properly under these circumstances. Practices hours of the end of their day. FedEx The other commenter pointed out that suggested that FMCSA carve out an 1. Comments to the 2011 NPRM there are many areas between Alaska exception for logs showing only off duty and the lower 48 states in which GPS Several commenters stated that the time and only require that they be devices do not show accurate locations. impact of ELDs would unevenly fall on turned over to the motor carrier prior to That commenter noted that he has smaller carriers. OOIDA provided an the driver performing any on duty work researched several ELDs and found that example of a current practice by a for the carrier. none would work for his situation. carrier that instructs drivers to falsify Where trucks do not return to the A recruiter who hires owner-operators HOS records kept on EOBR-like devices, main office every 8 days, Continental for a small carrier in Canada was and said there was no reason for current was concerned that this shorter concerned about the impact the ELD illegal practices to change with the use timeframe may force carriers to use cell mandate will have on the expedite of EOBRs. Advocates, and others, also phone or satellite wireless business from Canada to the United noted that current practices often communication for data transfer,

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creating additional costs. Continental days for the submission of RODS or recognize that such events are a routine stated the requirement to send RODS to supporting documents already has the aspect of daily fleet operations and the back office should remain at 13 ability to make this request of its allow flexibility for companies and days. drivers, and today’s rule does not drivers in the rule. Eclipse Software Systems stated that change that. Motor carriers can require ATA said that FMCSA should the requirement to file logs within 8 different policies so long as they are not consider the real-world challenges an days will be onerous to carriers wanting less rigorous than the FMCSRs. ELD mandate would create for fleets to use low-cost ELDs that do not support As a point of clarification, if a driver using rented and leased vehicles. In the wireless connections for data transfer, is off-duty for multiple days, the motor event of a breakdown, ATA explained and problematic for drivers who are carrier may annotate the driver’s ELD that a motor carrier will call on its truck away from their home terminal for more records to reflect that, subject to the rental and leasing company to provide than 8 days. The commenter noted that driver’s certification. As stated before, a replacement truck. It is not reasonable the gains in safety from such a the only prohibition is that no time that to expect the provider will have one requirement would also seem to be a driver spent driving can be converted with an ELD that matches the carrier’s minimal because the most pressing into non-driving time. Another HOS management system. ATA noted compliance issues occur in real-time, acceptable method of noting time spent that the carrier will be unable to when a driver is tired. According to the off duty would be to have the driver add populate the device in the replacement commenter, carriers have been operating this time retroactively with an vehicle with the driver’s RODS for the under the 13-day submission rule for annotation, at the beginning of his or prior 7 days. Even if the driver manually many years, and continuing with that her first day back on duty. Drivers who populates the device, the motor carrier limitation would mirror current have responsibilities outside of driving will not have the means to communicate operational patterns without penalizing should note those job-related functions and read data from it. ATA suggested users of low-cost ELD systems that in their ELDs as ODND time at the start that fleets using short-term replacement experience longer trips. of their driving the CMV. vehicles should be permitted to use The MPAA stated that FMCSA should Nothing in the today’s rule prohibits paper RODS for more than 8 days. confirm that industries in which drivers third parties from being engaged by a Similarly, the NMFTA commented work for multiple carriers, such as the motor carrier to help with HOS that its members are concerned about motion picture and television industry, compliance. If the third party is engaged the complications and costs ELDs may employ third-party administrators as an agent of the motor carrier and is present when the carrier routinely to coordinate ELD information and involved in HOS compliance through requires drivers to use different pieces technology. The commenter believed ELD use, that person will be required to of equipment. LTLs often rely on the that this approach may support the have a unique login on ELD systems. short-term use of rental equipment, and unique characteristics of production The requirement for HOS compliance LTL carriers must constantly manage drivers better than a carrier-by-carrier ultimately lies with the motor carrier, so and shuffle drivers in and out of both approach. MPAA suggested an FMCSA does not make the suggested company and temporary equipment to meet business needs. NMFTA stated amendment to proposed § 395.20(c). change to the regulatory language. The National Private Truck Council FMCSA has eliminated language that different truck manufacturers install different types of data equipment, appreciated that the Agency clarified was proposed in § 395.20(c) to avoid that carriers may use ELDs ‘‘to improve connections, and software. NMFTA confusion as evidenced by comments. productivity or for other appropriate noted this situation requires carriers FMCSA recognizes that different ELDs business practices,’’ and that the who wish to maintain the flexibility of will employ different technologies, rulemaking will not ‘‘ban or impose bringing in outside equipment on a including back office systems. FMCSA significant new restrictions on those temporary basis to invest in different does not intend to limit alternative functionalities.’’ types of cables and software to ensure technologies, provided that the ELD that their office systems can integrate operates in a manner that satisfies the 3. FMCSA Response with it. FMCSA intentionally created technical specifications in today’s rule. TRALA expressed concern about technical specifications that allow an H. Leased and Rented Vehicles proposed § 395.26(d)(2), which requires ELD of limited complexity, at lower that ELDs capture personal miles cost, and without monthly charges. 1. Comments to the 2011 NPRM operated in a CMV. TRALA asked how Today’s rule does not require real-time Commenters asked how rented and the recording of personal miles of a data transferor wireless submission of leased trucks would be treated (e.g., regulated motor carrier employee will data. Based on the comments to the would a truck rental company be be reconciled with the personal use of SNPRM, FMCSA changed some parts of required to install EOBRs for its rental vehicles by unregulated consumer the proposal to address data transfer and customers). A commenter explained that customers or motor carrier drivers who other issues, in order to increase the the occasional or seasonal use of rental are not subject to the ELD requirements flexibility of the ELD and address vehicles is a key part of many because they are under one of the short- multiple motor carrier business models businesses. haul exemptions in 49 CFR 395.1(e). and price points without compromising The commenter asserted that trip data of 2. Comments to the 2014 SNPRM safety or data integrity. rental customers who are not subject to Based on comments that reducing The IFDA wrote that while rental the ELD requirements, either because submission timeframes from the units can be equipped with ELDs, they they are using the CMV for non- currently required 13 days to 8 days will may not be the same as the system in commercial purposes or are exempt interfere with current business use in other company vehicles. The short-haul operators, should not be practices, today’s rule requires commenter noted this situation raises recorded nor be available for FMCSA or submission of both RODS and issues concerning training and State inspection. supporting documents to the motor maintaining records for drivers who are TRALA noted that transferability carrier within 13 days. A motor carrier using multiple systems within the same allows TRALA members to use ELDs on that wants a shorter time frame than 13 week. IFDA urged the Agency to vehicles where use is required, and to

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avoid the cost of employing that I. Business Relationships With Owner- employer or carrier and contractor. This technology where it is not. TRALA is Operators rule does not change the underlying concerned that its member companies requirement to comply with HOS. The 1. Comments to the 2011 NPRM may disclose their unregulated responsibility for complying with HOS, customers’ geographic location as a In addition to concerns related to including through the use of an ELD, mandatory ELD data element, or violate harassment (addressed elsewhere in this lies with both the driver and the motor the proprietary nature of the HOS data preamble), commenters believed that carrier. ELDs could affect the relationship recorded and stored on the ELDs by and FMCSA declines to amend the between motor carriers and the owner- on behalf of their regulated customers, language of § 395.20, as suggested by the operators with whom they contract. An the motor carriers. With multiple users commenters. The independent owner-operator said that the devices of a single vehicle, TRALA companies contractor relationship is outside the allow corporations to micromanage. could be liable for unlawful disclosure scope of this rulemaking. or access to such data. TRALA Another owner-operator said that the recommended allowing portable devices use of EOBRs could lead to drivers J. Carrier Liability being paid by the hour rather than the that have unique logins for each driver 1. Comments to the 2011 NPRM and strict protocols for device mile. One commenter stated ‘‘absent accessibility and information capture to uniform compatibility profiles and Several commenters to the NPRM, alleviate this concern. mandates, EOBRs installed on owner- including J.B. Hunt, stated that EOBR operator units would only necessitate use would help motor carriers lower In light of the significant concerns additional installation costs and the risk and liability because they would raised by the TRALA, IFDA, and others, incurring of unused vendor contracts as record more information and lower the the American Truck Dealers Division of owner-operators elect to move from one crash risk. Commenters also stated that the National Automobile Dealers carrier to another which is their right to access to a driver’s records through an Association urged FMCSA to clarify in do so in a free market on a regular EOBR would help decrease liability, as the rule that lessors and rental basis.’’ Another commenter wanted to the carrier and driver could plan routes companies bear no responsibility for know what system would be required if together to avoid delays. Other providing or installing ELDs in leased or the driver contracted to multiple motor commenters spoke of benefits as a result rented CMVs operated by CDL holders carriers. of minimizing the carrier’s liability employed by unrelated motor carriers. 2. Comments to the 2014 SNPRM while the CMV is being used for 3. FMCSA Response personal purposes. United Van Lines, LLC (United) and Because today’s rule provides a Mayflower Transit, LLC (Mayflower), 2. Comments to the 2014 SNPRM performance-based standard for ELDs, responding together, and AMSA, said a AMSA and United/Mayflower stated motor carriers will have a number of carrier’s obligations related to the use of that ELDs will be required to options to choose from the market place ELDs should not be a factor in automatically record a limited set of of ELD providers. This includes portable determining whether a lessor is an data points. However, ELDs being units that stay with the driver as independent contractor or an employee marketed to the trucking industry by opposed to being installed in the for Agency determination purposes and ELD system providers are able to, and vehicle. Motor carriers that rely upon recommended that FMCSA amend do, collect significantly more data than long-term leases of CMVs can work with § 395.20 to reflect that. required under the rule. Examples of United’s/Mayflower’s disclosed the leasing companies to identify source data streams include, but are not household goods agents may typically options and implement solutions to the limited to, measurements of a driver’s contract with non-employee, owner- challenge of using ELDs with leased speeding, hard braking, and idling. operators (‘‘drivers’’) who own or lease vehicles. Therefore, the Agency has not These data are recorded even when the their CMVs. United/Mayflower did not included in today’s rule an exception drivers are not under dispatch for a believe that their companies bear any for leased or rented CMVs. carrier. The proposed rule forbids responsibility for the drivers’ If a driver who is not required to use carriers from altering or erasing the compliance with HOS regulations when an ELD were to operate a motor vehicle original source data. This means that the drivers are not driving under their that is equipped with an ELD, that even if a carrier elects not to view driver would not have to use the ELD. respective authorities. United/Mayflower believed the reports including data points that are This would apply to a driver operating proposed rules would require them to not required by the rules, it must not under the short-haul exception in install ELDs in drivers’ CMVs when seek or permit the destruction of the § 395.1(e) or to a private individual operating under their authorities and, extraneous data collected by the using a rented truck to move his or her subsequently, to remove the ELDs. devices. own household goods. A company United/Mayflower believed that the AMSA and United/Mayflower were renting a truck to an unregulated proposed rules permit them to require concerned that the mandated retention consumer could protect that customer’s drivers operating under their operating of the additional data will lead to an information by removing the ELD or authorities to install ELDs owned by unintended increase in carrier liability. removing any recorded information United/Mayflower, even if the drivers These commenters anticipated that from the ELD. have already installed and are using certain lawyer groups will second-guess FMCSA does not regulate truck-rental their own ELDs in their CMVs. FMCSA’s judgment and carriers’ companies. There is no requirement or reliance on the information prohibition for a rental agreement or 3. FMCSA Response requirements imposed by the proposed short-term lease to include an ELD. A The Agency understands that there regulations by arguing that carriers had rental company might choose to include are many types of relationships between a ‘‘duty’’ to access and use the an ELD as a part of the agreement, just owner-operators and motor carriers. additional data created by ELDs. as they might include another piece of This rule does not change the United/Mayflower proposed that equipment. relationship between employee and FMCSA add new language that clarifies

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that the motor carrier would not be An ELD provider was the only study with ELDs had lower HOS responsible for accessing such data. commenter who agreed with the Safety violation rates because they were less These commenters also asked that Study’s finding that ELDs provide safety likely to be selected for inspection than FMCSA provide guidance that removes benefits. The remaining 21 commenters trucks without ELDs. any ambiguity concerning the criticized the Safety Study. One OOIDA objected to the study’s application of proposed regulations commenter provided crash and fatality conclusion that ELDs have clear safety prohibiting alteration or destruction of data for motor carriers that use ELDs, benefits. OOIDA cited one of its own data streams and reaffirm that drivers and noted that carriers with ELDs are surveys that compared the safety record not placed out of service are authorized still involved in crashes. Another of carriers with speed limiters and for use. commenter claimed that most traffic electronic logging devices to carriers fatalities are not caused by large trucks, without those monitoring devices. Using 3. FMCSA Response therefore, the ELD mandate is FMCSA/CSA data, OOIDA concluded FMCSA believes that transparency unnecessary. OOIDA provided a that carriers without electronic and increased control over a driver’s detailed critique of the Safety Study’s monitoring had a better crash ratio than records by the driver is beneficial to the data and concluded that, ‘‘FMCSA has monitored carriers. carrier-driver relationship. FMCSA no credible data on the relationship 2. FMCSA Response notes that commenters appear to focus between the use of ELDs and actual on a device that goes beyond the HOS compliance, and even less data on While the Agency acknowledges minimum requirements of this the relationship between HOS commenters’ concerns about the study, rulemaking, but is still part of an ELD- compliance and highway safety.’’ we did not rely on its conclusions to like device, such as an FMS. Though it According to OOIDA, the 2014 Safety establish the safety benefits of ELDs relative to paper logs. The Safety does not have a regulatory definition, Study lacks reliability for numerous Benefits Analysis in the RIA uses a any device that has the capabilities of an reasons, including because it is taken different measure of HOS violation ELD, like an FMS, is bound by the same from the records of carriers with rates, a different data set and a different recording and editing requirements and differing recording criteria. OOIDA study design to demonstrate a reduction prohibitions as an ELD in terms of criticized the study for failing to provide in HOS violations attributable to ELD required data elements. While an sufficiently detailed information about use. The Safety Study did, however, extended data set might be recorded by how the data inconsistencies were provide corroborative data to support an FMS, the items in it are not part of reconciled and for including crashes the crash reduction estimates used in the driver’s electronic RODS that are that OOIDA believed could not have been avoided by drivers. OOIDA wrote this rulemaking. required to be transferred to an FMCSA notes that the crash data in authorized safety official. Information that the number of HOS violations included in the 2014 Safety Study is not the Safety Study were vetted by analysts like hard braking or other events would to ensure consistency across carriers. not be a part of that required data set. consistent with the violation data in FMCSA’s Safety Measurement System. The Safety Study received two types of See also Section IX, C, Privacy; crash files from participating carriers— Ownership and Use of ELD Data, for OOIDA claimed that the Safety Study data did not include on-board recording those with only crashes and those with information on the use of data provided crashes plus claims data. To ensure the by an ELD. device violations. OOIDA also criticized the study for the small sample size, crash data was comparable across Today’s rule does not change motor failure to include small carriers, and carriers, data analysts removed all carriers’ existing obligation to ensure its failure to account for how trucks are claims data according to procedures drivers’ comply with HOS regulations. selected for inspection. OOIDA noted described in the study. The report The Agency does not believe that this that although 97 percent of all carriers includes examples of claims. However, requirement is ambiguous. However, the have fleets with 20 or fewer trucks, 9 of the report does not separately describe Agency does not address data elements the 11 carriers in the Study maintained each specific claim in the original that are not required as part of the fleets with more than 1000 trucks while carrier data. minimal technical standards for an ELD. the remaining two carriers had fleets As indicated in the report, all of the Nor does the Agency have the authority with between 100 and 500 trucks. HOS violations from the participating to address through its regulations the OOIDA stated that the Safety Study’s carriers were collected from FMCSA’s use of evidence in civil litigation. failure to control for the effects of ELD Safety Measurement System Web site K. Safety Study use on inspection frequency biased the during a short portion of 2010 and all results. Based on its own survey and the of 2011 and 2012. All categories of HOS 1. Comments to the 2014 SNPRM anecdotal evidence it collected, OOIDA violations were included in the analysis, On May 12, 2014, FMCSA announced claimed that trucks with ELDs are less although some HOS violations that the availability of a study concerning likely to be inspected for HOS violations could not be linked to a specific truck the safety benefits of ELD-like devices: than trucks without ELDs. In OOIDA’s in the study were dropped from the ‘‘Evaluating the Potential Safety Benefits survey, 39 percent of the 2,347 analysis. of Electronic Hours-of-Service respondents reported seeing ‘‘a law The study clearly acknowledged that Recorders’’ (Safety Study). It enforcement official passing on its sample was skewed toward large, for- quantitatively evaluated whether trucks inspecting another driver’s logs because hire carriers. However, because the equipped with devices like ELDs had a the truck was equipped with an EOBR/ study was designed to compare trucks lower (or higher) crash and HOS ELD. Further, numerous responders with and without ELDs owned by the violation rate than those without such reported that in addition to just passing same carrier, large carriers provided the devices (May 12, 2014, 79 FR 27040). on inspection, officers did not know best set from which to obtain this data. The study is available in the docket for how to operate EOBRs/ELDs.’’ Any bias toward a specific carrier or this rulemaking.36 According to OOIDA, trucks in the type of carrier would equally affect trucks with and without ELDs. 36 In the docket for this rulemaking, docket www.regulations.gov/#!documentDetail;D=FMCSA- The study applied statistical number FMCSA–2010–0167–0900, http:// 2010-0167-0900. techniques to identify and measure the

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effects of ELD use separately from the Register (79 FR 67541). In that notice, establish a connection between driver many other factors that affect crash FMCSA re-opened the public docket for harassment or coercion and motor rates. As with any study, the Safety this rulemaking for the limited purpose carrier safety in the future, the Snack Study could not completely eliminate of soliciting comment on this survey. Food Association recommended that all potential sources of bias. Although The report titled, ‘‘Attitudes of Truck FMCSA use enforcement tools under the study was able to control for carrier Drivers and Carriers on the Use of existing regulations to address the issue. factors that might affect selection for Electronic Logging Devices and Driver In its comments on the Harassment roadside inspection, the study did not Harassment’’ (the Harassment Survey),37 Survey, OOIDA raised several issues address the relationship between ELD summarized the survey findings. The concerning the ELD rulemaking, use and the likelihood a truck would be survey explored driver’s attitudes about including FMCSA’s responsibility to selected for inspection. The Safety harassment and whether harassment is ensure ELD’s are not used to harass Study measured HOS violation rates as more prevalent for drivers using ELDs. drivers and the demonstrated use of the ratio of HOS violations to millions The survey had seven major findings in ELDs by motor carriers to harass drivers. of vehicle miles travelled. If trucks with the following areas: OOIDA cited language in the ‘‘Notice’’ ELDs were less likely to be inspected 1. Interactions which drivers consider section, on page 2 of the report, that per mile traveled then the study would harassment. indicates the report does ‘‘not overestimate the reduction in HOS 2. Frequency of experiencing necessarily reflect the official policy of violations due to ELD use. By contrast, interactions considered harassment. the USDOT,’’ nor does it ‘‘constitute a the safety benefits analysis in the RIA 3. Whether harassing experiences are standard, specification or regulation,’’ as measured HOS violations per inspection associated with ELDs. suggesting that the Agency has and found a significant reduction in 4. Whether drivers who use ELDs distanced itself from the results of the HOS violations in a before and after have different experiences than those study and ‘‘disavows responsibility for comparison in a group of carriers that who use paper. the accuracy of the data in the report.’’ had implemented ELDs at a certain 5. Nature of attitudes toward ELDs. The commenter pointed out that the time. OOIDA’s claim that the Safety 6. Whether the perspectives of carriers report did not provide information on Study data did not include on-board are substantially different from drivers. the background or qualifications of the recording device violations is incorrect; 7. Reactions to FMCSA definitions of contractor or the authors of the report, the Safety Study did include these harassment and coercion. information about the Agency’s Of the 13 comments that FMCSA violations. direction to the contractor regarding the In reviewing the data presented by received in response to the notice of research, and the raw data from the OOIDA, FMCSA notes that those studies availability, 9 commenters did not survey. OOIDA also noted the report is did not control for numerous other address the report; rather, they not peer reviewed and FMCSA has not factors that affect crash or violation expressed their opposition to the ELD made any official statement recognizing rates. In addition, OOIDA’s survey data mandate, the HOS rules, or both. or adopting any findings of the study. showing that roadside inspections of Advocates and ATA agreed that the data OOIDA contended the survey ELD-equipped CMVs are routinely indicates that drivers’ experience of framework and terminology differ from waived is subject to its own selection harassment is unlikely to be affected by the statutory requirements for ELDs set bias. FMCSA continues to believe that ELD use. ATA also stated that the forth in 49 U.S.C. 31137(a) (2012). For example, OOIDA stated FMCSA’s duty the safety benefits estimates presented survey’s findings that instances of to ensure ELDs are not used to harass with the SNPRM were appropriate and harassment are uncommon are drivers does not require the finding of supported by the research the Agency consistent with ATA members’ any particular level of harassment, or a sponsored. experiences. However, ATA expressed The Safety Study focused on concern that in the report FMCSA comparison of the level of driver estimating the effects of ELDs on represented some scenarios as harassment by motor carriers using outcome measures of safety, such as harassment, such as waiting time delays ELDs versus instances of harassment crash rates, rather than process and driver compensation issues, that when paper log books are used. However, the commenter stated the measures, such as violation rates and are, in fact, not related to harassment. survey compares reports of harassment fatigue. The study found a significant ATA further noted that FMCSA’s between AOBRD users and paper log reduction in the overall crash rate and definition of harassment does not refer users. Although language related to the the preventable crash rate for trucks to waiting time or how drivers are paid, use of ELDs to monitor productivity is with ELDs compared to trucks without nor has Congress suggested that not included in the current version of ELDs. Due to limited data, the study harassment should include delays the law, OOIDA wrote ‘‘the survey could not evaluate the effect of ELDs on caused by customers. report spends excessive time on DOT-reportable and fatigue-related The Snack Food Association productivity issues.’’ The commenter crashes. addressed concerns about the driver harassment and coercion rulemakings. also took issue with the definitions of L. Harassment Survey The commenter stated the results of ‘‘harassment’’ and ‘‘coercion’’ used in the survey, stating that the statute does 1. Comments to the Survey FMCSA’s survey report suggest ‘‘that coercion or harassment of drivers is not not require that harassment result in any FMCSA conducted a survey to a significant issue impacting motor driver violation. Similarly, OOIDA examine the issue of driver harassment carrier safety,’’ thereby undermining the noted the survey definition of coercion and to determine the extent to which need for regulation. Should the Agency requires the offending conduct be based ELDs are used to either harass drivers or on the denial of business or work, but monitor driver productivity. The 37 The Harassment Survey is available in the the statute does not include such a research explored the relevant issues docket for this rulemaking; it is docket number requirement. from the perspective of both drivers and FMCSA–2010–0167–2256. It is also available on OOIDA asserted the survey line at: http://ntl.bts.gov/lib/54000/54100/54178/ carriers. On November 13, 2014, RRR-14-009-Attitudes_of_Truck_Drivers_and_ methodology likely resulted in under FMCSA published a notice of Carriers_on_the_Use_of_ELDs_and_Harassment- reporting instances of driver availability for the survey in the Federal V11-FINAL.pdf. harassment. One source of under

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reporting is the result of the survey FMCSA to review its pending proposed Operator Indep. Drivers Ass’n v. Fed. being based on self-reporting rather than ELD rules to address the record it has Motor Carrier Safety Admin., 656 F.3d direct observation. OOIDA noted motor now made with this study. 580, 588–89 (7th Cir. 2011). The carriers are not likely to admit to OOIDA stated that the record for the Agency’s obligation to consider coercion unlawful driver harassment, and drivers proposed rulemaking is deficient in certain rulemakings was are unlikely to admit that they were a because it lacks information and subsequently enacted as part of MAP– victim of harassment, particularly when analysis on the survey, and because the 21. 49 U.S.C. 31136(a)(5). Neither term it might implicate them in a violation. public has not had an opportunity to is defined by statute. Although OOIDA OOIDA also contended large motor react to, and comment on, the survey. objected to survey time spent on carriers are strong supporters of ELDs As described in the SNPRM, OOIDA productivity issues, those issue were and, therefore, more likely to report noted that FMCSA initiated a survey of included because the circuit court positive results with respect to ELD use. drivers and motor carriers regarding the explicitly addressed productivity. OOIDA argued that large motor carriers use of e-logging devices to harass FMCSA responded to OOIDA’s concerns were the subject of the survey. drivers, but a report on the results of about the definitions of harassment and According to OOIDA, although motor that survey is not due until 2 months coercion in the May 28, 2013, notice carriers with 10 or fewer trucks make up after the close of the comment period for addressing the Agency’s ICR under the 92 percent of registered motor carriers, the SNPRM. OOIDA asserted that it was Paperwork Reduction Act (78 FR they made up only 2 percent of the this type of defect in a rulemaking 32001).38 Further, Congress eliminated survey. process that caused the U.S. Court of the statutory reference to productivity in OOIDA expressed concern about the Appeals for the DC Circuit to overturn enacting MAP–21 and the Agency does quality of the survey data, stating that the HOS rules in July 2007. OOIDA not regulate productivity in this rule the survey only partially focused on stated that to remedy this problem and (other than to clarify that productivity driver harassment. The commenter comply with the Administrative measures undertaken by carriers cannot explained that of the total of 14 Procedure Act, FMCSA must be be used to harass drivers). questions asked of respondents, 7 prepared to publish the data collected FMCSA acknowledges OOIDA’s questions have no connection to ELDs by the survey and its analysis of that concern that neither drivers nor motor or harassment, 3 other questions relate data, and welcome another round of carriers may disclose harassment when to harassment, but have no relationship comments so that interested parties may it might implicate them in a violation. to ELDs, and only 4 questions relate to properly address the driver harassment However, every reasonable step was motor carrier use of ELDs to harass issue. taken in the survey to ensure the drivers. However, OOIDA stated, the anonymity of drivers. They were 3. FMCSA Response four relevant questions were asked in assured that no one would be told of generic terms that suggested unlawful In accordance with the Paperwork their participation or their answers. The behavior, but they were not presented in Reduction Act of 1995, FMCSA sheet they signed acknowledging the context of a real-world example that announced its plan to submit an ICR to questionnaire topics was kept separate might be meaningful to drivers. OOIDA OMB and asked for comments in from the surveys. Participation was not said comparing the data associated with Federal Register notices on December mandatory, which was explained to the responses to generically worded 13, 2012 (77 FR 74267) and May 28, drivers and written on the sheet. Carrier questions to data associated with 2013 (78 FR 32001). Both of these personnel were included in the survey responses to questions that used more notices provided the name and because they interact with drivers and specific language supports its concern. complete contact information for the because their perspective on harassment Although the report characterized the contractors who conducted the survey. is relevant to FMCSA. instances of driver harassment as few on That information is also in the study OOIDA criticized the survey a percentage basis, OOIDA believed the report itself, and available at: http:// questions because, in their view, only evidence shows significant use of ELDs ntl.bts.gov/lib/54000/54100/54178/RRR- four questions relate directly to the use to harass drivers in terms of raw 14-009-Attitudes_of_Truck_Drivers_ of an ELD by a motor carrier to harass numbers. Applying the report’s and_Carriers_on_the_Use_of_ELDs_ a driver. The questions were formulated percentages to the 2.3 million drivers and_Harassment-V11-FINAL.pdf . to include a list of interactions which who would be covered by the proposed The study objectives are set out in the includes items seen as both positive and ELD rulemaking, OOIDA’s analysis report. In addition the December 13, negative, which helped to ensure that showed, at least once a month, motor 2012, and May 28, 2013, notices spelled the list was not biased. Second, the carriers changing the duty status of out the objectives clearly and provided opinions of what is beneficial can vary. more than 98,000 drivers, contacting opportunity for comment. Two peer The wording of questions was pre-tested more than 206,000 drivers and asking reviews were conducted—the first on in a series of in-depth interviews with why their truck was not moving, and the study design and methodology and a random set of drivers. Comprehension asking 276,000 drivers to operate when the second on the actual findings and of the items was confirmed, and drivers fatigued. OOIDA asserted this data presentation. Further, the study were also asked whether there was illustrates that motor carriers would use methodology was reviewed through the anything else they considered ELDs as a tool to ask drivers to operate OMB Paperwork Reduction Act and ICR harassment that was not on the list of longer hours than the driver’s processes. what had been asked. professional judgment will support. OOIDA contended that the survey The report characterized instances of Furthermore, OOIDA believed the study framework and terminology and the driver harassment as ‘‘few’’ when documents the serious problem of definitions of ‘‘harassment’’ and considered on a percentage basis. Based harassment requiring a serious ‘‘coercion’’ used in the survey differ on an estimate of 2.3 million drivers, regulatory response. from the statutory requirements. The OOIDA applied the percentages in the OOIDA contended FMCSA’s proposed harassment element of the survey was report to the affected population of rules do not take into account the record premised on the opinion of the United it has made on the current use of ELDs States Court of Appeals for the Seventh 38 OOIDA’s comment on the December 13, 2012, to harass drivers. It stated it expects Circuit, addressing this matter. Owner- notice is available in docket FMCSA–2012–0309.

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drivers and concluded that many particularly invasive because most compliance with the Fourth drivers are affected by harassment. This drivers spend a significant amount of Amendment turns on whether the extrapolation may or may not be time in their trucks and view them more inspection program, in terms of the accurate, since confidence intervals as homes. Commenters pointed out that certainty and regularity of its were not provided for the incidence of 24-hour audio and visual monitoring application, provides a constitutionally harassment. would be particularly offensive to adequate substitute for a warrant. OOIDA recommended that FMCSA husband and wife teams who live in OOIDA stated that the proposed use identify current Federal and State their trucks. of ELDs does not involve the inspection enforcement practices and rules that Another commenter stated that there of ‘‘commercial premises,’’ but, rather, protect drivers from harassment and needs to be a way for enforcement involves the systematic tracking of the coercion. At least nine questions in the personnel to view logs from outside of movement of individual drivers over survey addressed this very issue, trucks, because he would not give extended periods of time by the use of including question 32, which enforcement personnel permission to sophisticated electronic devices in order specifically asked drivers to rate the enter his truck without a search warrant. to enforce compliance with HOS effectiveness of Federal regulations. Another commenter pointed out that the regulations. OOIDA pointed out that FMCSA conducted the Harassment government does not drug test every neither Burger nor any of the cases Survey to better understand drivers’ and citizen to ensure compliance with drug implementing the pervasively regulated carriers’ perceptions of harassment. laws, or put GPS trackers on all vehicles industry exception stand for the FMCSA posted the report on the survey on the highway, or put ignition proposition that individuals working in in the rulemaking’s public docket and interlocks on all vehicles to deter a pervasively regulated industry may be opened the rulemaking for public driving while intoxicated, or read every personally subjected to continuous comment on the report (November 13, piece of mail or listen to every phone surveillance by sophisticated 2014, 79 FR 67541). The Agency call, because it would be monitoring devices over long periods of considered the results of the survey, as unconstitutional to do so; likewise, time without a warrant. well as comments on the report, as part required use of an ELD is OOIDA also argued that the proposed of the rulemaking process. The Agency unconstitutional. Commenters stated use of ELDs does not fall within the relied on both the survey results and the that the government should not mandate pervasively regulated industry responsive comments to inform this ELDs on CMVs unless it is willing to exception because it does not satisfy the rule. mandate such devices for every form of second prong of the Burger test—i.e., transportation. that the search be necessary to M. Legal Issues—Constitutional Rights: OOIDA provided the most extensive accomplish regulatory goals. In support Fourth and Fifth Amendments analysis addressing why, in its view, the of its argument, OOIDA noted that, 1. Fourth Amendment required use of ELDs runs afoul of the according to FMCSA, government Fourth Amendment. OOIDA noted that interests at issue in this rulemaking are Comments to the 2011 NPRM the Fourth Amendment applies to both to improve compliance with various Numerous commenters to the NPRM criminal and civil cases and proscribes HOS rules; to make the operation of claimed that the proposed rule violates unreasonable searches and seizures. CMVs safer; and to improve drivers’ the Fourth Amendment of the United OOIDA pointed to Federal case law to opportunities for rest. OOIDA asserted States Constitution in that the required support the conclusion that prolonged that the record presented does not use of an electronic recorder results in and systematic tracking of drivers using support the conclusion that FMCSA’s an unreasonable search and seizure and ELDs constitutes a search under the regulatory goals are furthered by the an invasion of a driver’s right of privacy. Fourth Amendment. OOIDA first ELD mandate, arguing that drivers must Comments to the 2014 SNPRM pointed to a Supreme Court case, United manually enter changes in duty status States v. Knotts, 460 U.S. 276 (1983), in into an ELD, which makes the device no Similar Fourth Amendment which the Court held that the short term better than paper logs. OOIDA also arguments were submitted in response use of a simple beeper device to track stated that FMCSA is completely unable to the SNPRM. A majority of these the movement by truck of a 5-gallon to support its safety claims with current, commenters stated that the ELD drum of chloroform used in drug reliable data. mandate would be an invasion of manufacturing was not a search. OOIDA FMCSA Response privacy rights. Comments included noted that the Knotts case presents a statements such as one noting that very narrow ruling under facts that are FMCSA disagrees that the required requiring an ELD results in a sustained easily distinguished from the proposed use of ELDs violates the Fourth illegal search without a warrant and a use of ELDs. OOIDA also cited to Amendment. For more than 75 years, search of property (including data and subsequent case law where Federal CMV drivers engaged in interstate personal information) without courts declined to apply the Knotts commerce have been required to keep permission or reasonable cause. One ruling beyond the narrow confines of paper logbooks as part of their commenter noted that, when an agent of the facts presented in that case. compliance with HOS rules. Under a government can stop your vehicle and OOIDA next stated that the use of current regulations, the log must show, download your whereabouts over the ELDs to monitor driver behavior is not among other information, the driver’s last several weeks, you have lost your covered by the ‘‘pervasively regulated duty status (on duty, on-duty driving, privacy. Two commenters pointed out business’’ exception to the warrant sleeper berth, off duty) and the general that the Supreme Court recently ruled requirement articulated by the Supreme location of any change in duty status. that authorities must have a warrant to Court in New York v. Burger, 482 U.S. Although an ELD will record driving obtain cellular phone data. Those 691, 702–703 (1987). OOIDA explained time information automatically commenters noted that mandatory that the Supreme Court concluded in (including date, time and location for tracking and monitoring of CMV drivers Burger that where (1) the business in any transition into or out of driving with ELDs is the same thing and should question is closely regulated, and (2) the time) and collect location information at require a warrant. Several commenters warrantless inspections are necessary to intermediate intervals, only the pointed out that the ELD mandate is further the regulatory scheme, then (3) methodology changes; the fundamental

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data and the purpose of data collection 2014) (required use of technology, As to the concern about authorized remains unchanged. To be sure, an ELD including GPS, under municipal safety officials entering the CMV, the collects additional data elements (such regulatory scheme governing taxicabs technical specifications in today’s rule as engine on, engine hours), but the did not result in a search under Fourth require that an ELD without a printer be minimal expansion is aimed at ensuring Amendment). designed so that its display may be the authenticity of the driver’s data. Commenters also referenced a recent reasonably viewed by an authorized While technology such as GPS can Supreme Court decision holding that safety official outside of the vehicle. generate a ‘‘precise comprehensive authorities required a warrant to view Some commenters’ Fourth Amendment data captured on a cell phone that they record of a person’s public movements’’ concerns reflected a misunderstanding compared to an ELD. The case that reflects a wealth of personal of the rule. For example, at no point did information (United States v. Jones, __ referenced, Riley v. California, __U.S. __ __, 134 S. Ct. 2473 (2014), involved the Agency propose constant audio and U.S. , 132 S. Ct. 945, 955 (2012) visual monitoring of drivers. In sum, the (Sotomayor, J., concurring)), the rule searches of cell phone data incident to Agency believes that commenters’ does not provide for presentation of this arrests; thus, it is clearly distinguishable Fourth Amendment objections are not level of precision to authorized safety from the required use of ELDs. officials. Rather, the Agency has Even if we assumed that requiring the supported by the relevant case law as deliberately limited the location collection of data through an ELD and applied to today’s rule. sharing that information with information shared with authorized 2. Fifth Amendment safety officials to avoid specific authorized safety officials qualified as a proximities, and is recorded at varying search, the commenters fail to recognize Comments to the 2011 NPRM prescribed intervals rather than real that not every search is unreasonable for purposes of the Fourth Amendment. Several commenters said that time reporting—measures taken to requiring the use of EOBRs violates address drivers’ privacy concerns. Notwithstanding comments to the drivers’ rights under the Fifth While ELDs would generally replace contrary, it is well established that Amendment of the United States paper logs, a change required by statute, interstate commercial trucking is a Constitution. the basic premise, that is, prescribing a pervasively regulated industry. See method of policing a driver’s United States v. Castelo, 415 F.3d 407, Comments to the 2014 SNPRM compliance with HOS regulations, 410 (5th Cir. 2005), and United States v. remains unchanged. An ELD records Maldonado, 356 F.3d 130, 135 (1st Cir. In responding to the SNPRM, OOIDA data only during operation of a CMV 2004) (applying New York v. Burger, 482 elaborated on its Fifth Amendment and drivers have no reasonable U.S. 691 (1987)), concluding that concerns, claiming that the required use expectation of privacy in the data interstate commercial trucking is a of ELDs violates drivers’ right of due captured during that period. pervasively regulated industry, capable process through an imposition of ‘‘an of supporting recourse to an The Fourth Amendment provides, in unconstitutional deprivation of a administrative search exception. The part, that, ‘‘[t]he right of the people to driver’s freedom of movement.’’ It nature of its regulation justifies treating be secure in their persons, houses, described the SNPRM as ‘‘provid[ing] motor carriers and CMV drivers papers, and effects, against for electronic monitoring combined differently from the population at large. unreasonable searches and seizures, with, effectively, a curfew.’’ According Although some commenters draw an shall not be violated.’’ A Fourth analogy between a driver’s truck and the to OOIDA, electronic monitoring is Amendment search occurs when the driver’s home, the Supreme Court has imposed without any determination of government invades a person’s privacy long recognized that an individual’s an individual driver’s risk to public interests that society recognizes as expectation to privacy in a private safety. OOIDA notes that the ‘‘right of reasonable or seeks to obtains vehicle is less than that in a home procedural due process requires an information by physically intruding on (Preston v. United States, 376 U.S. 364, individual hearing for each person to a constitutionally protected area. United 366–367 (1964)). The privacy interests determine whether electronic States v. Jones, __U.S. __, 132 S. Ct. 945 of CMV drivers are clearly diminished monitoring plus a curfew (restricting the (2012). Commenters argued that given the nature of the commercial accuser’s [sic] right to freedom of required use of an ELD results in an trucking industry (Int’l Bhd. of movement) was reasonable and unconstitutional search. (No commenter Teamsters v. Dep’t of Transp., 932 F.2d necessary to meet the government’s argued the use of ELDs involved a 1292, 1300 (9th Cir. 1991) (upholding interest.’’ In support of its position, seizure.) However, commenters arguing DOT drug testing regulations)). OOIDA OOIDA relies on a series of Federal that a Fourth Amendment violation notes that case law addressing the district court cases finding that results from the required use of ELDs pervasively regulated industry does not automatic electronic monitoring and rely largely on case law addressing law support the proposition that individuals curfews imposed as a condition of bail, enforcement’s use of technology for working in the industry may be subject required under the Adam Walsh Child surveillance purposes, thus without the to continuous surveillance over long Protection and Safety Act of 2006 40 for subject’s knowledge, or searches of periods of time absent a warrant. property conducted incident to arrests. certain violations involving minors, are However, that argument ignores that FMCSA believes these cases are unconstitutional. ELD-related monitoring is limited, tied inapposite. Given that ELDs are to a driver’s compliance with HOS rules employed by motor carriers pursuant to special needs beyond the needs of ordinary law while operating a CMV. Although the enforcement. Given the Agency’s position that a Federal regulatory requirement and methodology is new, the required required use of an ELD is not a ‘‘search’’ for drivers are aware of their use, there is monitoring of hours has been in place purposes of the Fourth Amendment but, even if it no trespass or infringement of a were considered a search, it is justified under the over 75 years.39 reasonable expectation of privacy. Thus, exception for administrative searches in a pervasively regulated industry, we do not address there is no search for purposes of the 39 OOIDA also argued that the ELD requirement this argument. Fourth Amendment. Cf. El-Nahal v. does not satisfy an exception to the warrant 40 Public Law 109–248, Title II, sec. 216, 120 Stat. Yassky, 993 F.Supp.2d 460 (S.D.N.Y. requirement applicable to situations involving 587, 617 (July 27, 2006).

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FMCSA Response movements by other drivers, should be distance’’ travel to and from the nearest OOIDA and other commenters stated logged. FMCSA proposed that the ELD lodging or restaurant facilities in the that the ELD mandate is akin to a would provide the capability for a immediate vicinity. ‘‘Personal criminal penalty that unlawfully driver to indicate the beginning and end conveyance’’ would also include use of restricts a driver’s freedom of of two specific categories: Personal use a motor carrier’s CMV to travel from a movement. OOIDA’s reliance on cases of a CMV and yard moves, where the driver’s home to his/her terminal under the Adam Walsh Child Protection CMV may be in motion but a driver is (normal work reporting location), or and Safety Act is misplaced. That Act not necessarily in a ‘‘driving’’ duty from a driver’s terminal (normal work requires continuous electronic status. If a motor carrier allowed drivers reporting location) to his/her home. In monitoring by the government of to use a CMV for personal conveyance any case, this distance could not exceed individuals who have been charged, but or yard moves, the SNPRM proposed the lesser of 25 miles or 30 minutes. not convicted, of certain crimes that a driver’s indication of the start and Schneider supported this definition. end of such occurrences would record a involving minors. The statute’s very Comments on the Practical Application dataset; but the ELD would not indicate purpose is to track and restrict the of the Rule individual’s movement without any these as separate duty statuses. If a driver used a CMV for personal Through testing with hundreds of procedural review of the risk posed by drivers, Schneider found that having the individual charged. In contrast, conveyance, the ELD would not record that time as on-duty driving. driving status trigger only off of a speed today’s rule requiring ELDs, applicable FMCSA did not define a specific threshold without an additional mileage to certain individuals electing to operate threshold of distance or time traveled threshold is detrimental to the ELD. It CMVs as part of a pervasively regulated for a driver to be able to use the recommended that FMCSA change the industry, does not require constant personal conveyance or the yard appendix to subpart B of part 395, monitoring of individual drivers. It movement provisions. Instead, section 4.3.1.2, paragraph (1) to read simply replaces a long-standing existing authorized motor carrier safety ‘‘[o]nce the vehicle speed exceeds the process under which drivers have been personnel and authorized safety officials set speed threshold OR the vehicle required to manually track their time to would use the ELD data to further travels more than 1.5 miles, it is demonstrate compliance with HOS rules explore and determine whether the considered in motion.’’ The commenter with an electronic recording system. driver appropriately used the indicated believed this avoids the potential for a There is no automatic electronic special category. tractor to move 20 miles at 2 miles per monitoring once a driver steps out of the ATA stated that FMCSA’s modified hour without showing any driving time. CMV. proposal represents a reasonable middle Also, in section 4.3.1.2, paragraph (2), Although other comments did not ground. Carriers will have a record of all Schneider suggested the vehicle should fully explain how the Fifth Amendment vehicle movements but will be able to be considered stopped when the speed would be violated, it appears that their distinguish those that should be reaches 0 miles per hour AND the unit concerns related to access to the HOS legitimately recorded as driving time stays at 0 miles per hour for 5 minutes, records and the right against self- from those should not. Further, it will rather than the proposed ‘‘3 consecutive incrimination. The commenters, help law enforcement identify true seconds.’’ Commenter wrote that to however, ignored established law that driving time violations, while at the leave the threshold at 3 seconds as the provides an exception to the Fifth same time providing visibility to yard rule proposes will result in invalid duty Amendment privilege against self- and personal conveyance movements in status changes. incrimination for records that are the event they are unreasonable or AGC urged the Agency to include a required to be kept by law such as the excessive. provision allowing short vehicle HOS rules. Driver HOS records, whether movements within a closed facility (e.g., in the form of a paper log book or data Defining Yard Moves and Personal less than 2 miles in the aggregate) to be captured by an ELD, fall under this Conveyance recorded as ODND time. Saucon exception. By engaging in a regulated Schneider recommended ‘‘yard Technologies recommended allowing industry, a driver waives any privilege moves’’ be defined, as did inthinc. the driver to indicate yard movement by related to the production of required Schneider noted this term, which is selecting an appropriate comment on records (Thomas v. Tyler, 841 F. Supp. used in § 395.28 under ‘‘special driving the device. Once yard movement is 1119 (D. Kan. 1993)). categories—other driving statuses,’’ selected, the driver would be allowed to In sum, commenters’ Fifth requires a clear definition. Without a move the CMV within the confines of Amendment arguments lack merit. definition, Schneider asserted, there the yard, (minimum amount of distance N. Short Movements or Movements will be inconsistency in the use of this should be clearly defined), before the Under a Certain Speed and Personal status that will create issues during status would automatically change to Use of a CMV roadside enforcement. Schneider On-Duty Driving. suggested defining ‘‘yard move’’ to While the driver is to indicate 1. Comments to the 2011 NPRM mean ‘‘an on-duty not driving activity manually the beginning and ending of The NPRM relied upon the technical where all driving is done within an area yard moves, XRS stated that there is no specifications from the April 2010 rule. that does not allow for any public guidance on how the ELD should Those specifications did not address the access.’’ indicate a yard move is beyond issue of short movements or movements CVSA recommended that FMCSA appropriate limits, such as a warning if under a certain speed and for personal define the term ‘‘personal conveyance’’ the ELD indicates Yard Move and the use. in 49 CFR 395.2 as ‘‘an unladen CMV exceeds the normal safe yard commercial motor vehicle (CMV) . . . speed or distance. Geo-fencing of yards 2. Comments to the 2014 SNPRM used by a driver, while in an ‘‘off-duty’’ would be costly and time consuming In the SNPRM, FMCSA sought status and when the utilization of a and not an effective practice. comments on how short movement, motor carrier’s CMV is necessary for XRS asked FMCSA to clarify the such as movements within a terminal, personal transportation, and for a short process of reviewing unassigned driver similar slow movements, and yard distance.’’ CVSA would consider ‘‘short moves of the CMV with an ELD device

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installed. XRS believed the language in unauthenticated driving time. Truck in the ELD rulemaking, as both clearly proposed § 395.32(c) seems to contradict stops are not technically ‘‘yards’’ so a fall under the HOS rules and are the driver identification process as later clarification may be warranted in the applicable to a wide variety of CMV described in § 395.32(c)(1)(ii). rulemaking. operations, not just those using ELDs. Commenter believed that the SNPRM TRALA stated that, at the very least, Thus, the Agency declines to address made the carrier responsible for the there is some confusion as to whether these matters at this time. final determination of ownership of all miles, including personal and yard Additionally, the Agency does not unidentified driving. XRS suggested an miles, must be recorded. Zonar stated create any new provisions for either edit process that would give the driver that an ELD must provide the means for status, instead requiring only that they the opportunity to reject the a driver to indicate the beginning and each be recorded. By making specific unidentified hours in the edit review. end of a period when the driver uses the requirements on how these statuses XRS asked for direction concerning CMV for personal use or yard moves. must be recorded, but not specifying which ELD records under the Zonar asked how the driver will end the limits in mileage or time, FMCSA has unidentified driver profile need to be yard move if the CMV is moved in the purposely left these guidelines as open presented to the driver. yard and then continues out of the yard as they are today, to suit the diversity Coach USA stated that support to a road move. of operations across the country. personnel, rather than drivers, often While the SNPRM does not subscribe FMCSA wishes to clarify that all make yard moves, for example, when to a specific threshold of miles or time, miles driven, regardless of the status the they wash buses. The result is many the TCA stated that it is important that driver has selected, are recorded. short movements within the facility by personal conveyance be distinguished However, when a personal conveyance personnel who are not drivers and never from true driving time. TCA wrote that status is selected, the CMV’s location is operate a bus outside of the facility. FMCSA should more clearly define the recorded with a lower level of precision, Under FMCA’s proposed ELD principals and parameters of personal i.e., an approximate 10-mile radius. specifications, Coach USA wrote that it conveyance so that it can avoid any FMCSA believes that the recording of appears that all of these yard moves by misinterpretation. ATA supported these miles is essential to HOS support personnel would be recorded as FMCSA’s proposed treatment and compliance, but balances this ‘‘unidentified driving,’’ and the carrier recording of personal conveyance and requirement with protections on the would be responsible for annotating movements within closed facilities (i.e., privacy of location data when drivers each of these records to explain why yards). NAFA Fleet Management are not on-duty. they are not assigned to a driver. This Association concurred that authorized If a driver selects the yard moves would create a substantial use of a CMV for personal conveyance status and then begins regular driving, administrative burden for large carriers. would not be recorded as driving, but the driver simply switches statuses. If Coach USA suggested that FMCSA rather off-duty time. Eclipse Software there is no break, and the driver forgets allow ELDs to be designed to recognize, Systems agreed that the driver needs to to add the new status, the driver can using GPS, when they are being indicate when he or she begins personal annotate his or her record to explain operated within the carrier’s facility and use. However, just as the proposed rules this, and can switch the time between could be set to automatically record any allow the driver to be placed in ODND the two statuses, as both are driving unassigned operation within the facility after 5 minutes with no vehicle statuses. of a duration of less than 15 minutes as movement, Eclipse would like to enable At the end of a personal conveyance ‘‘yard moves by support personnel.’’ the same automatic functionality for the status, FMCSA does not require that the Such a system would effectively end of Personal Use time. A number of ELD automatically switch to an off-duty annotate all of the unassigned yard individual commenters asked FMCSA to status. Again, the driver can annotate moves automatically. If a driver were to clarify when it is appropriate to use a his or her record to explain if the driver engage in yard moves, Coach USA wrote CMV for personal conveyance. One forgets to record an off-duty status at the that driver could still log in and set the asked that the guidance be rewritten. end of the driving time. ELD to record the yard moves under his Another commenter suggested that FMCSA understands the potential for or her account. The Alliance for Driver personal conveyance could be used to abuse of the personal conveyance status, Safety and Security stated that there is disguise moves in the local delivery area and has purposely required that all no guidance for the common situations of a terminal. Several individual movements of the CMV be recorded whereby the truck leaves the property commenters asked that allowances be (with a less precise location briefly, increases speed for a mile and made for maintenance driving, for requirement). The rules do not allow returns to the yard. example, when a CMV was being tested. driving statuses, including off-duty Eclipse Software Systems asked driving, to be edited to say they are non- FMCSA to allow automated yard moves. 3. FMCSA Response driving time. These protections will The point at which a vehicle comes to FMCSA acknowledges and agrees directly address the falsification of HOS rest for more than 5 minutes becomes its with the commenters who stated that records, making it significantly harder. anchor point. As long as the vehicle ELDs, by virtue of recording all FMCSA believes that recording all the does not move, say, outside a half-mile movements, will create a visible time that a CMV is in motion will limit radius of that anchor point, these moves consistent record of all actions taken in significantly the amount of falsified could be logged automatically as yard the CMV. time. moves. This prevents any significant The Agency is aware that there are Commenters asked about mechanics vehicle use, while reducing the likely concerns about personal conveyance or maintenance personnel operating number of unauthenticated driving and yard moves, as some commenters CMVs, or driving done by employees events. Eclipse also stated that would like clear-cut limits on the who are not listed CMV drivers. Today’s sometimes drivers need to move their mileage or time thresholds for CMV rule allows any employee of the motor trucks short distances at a truck stop. It usage acceptable under personal carrier that operates the vehicle to have would be fair if they could log this as conveyance and yard moves. However, a unique login. If a CMV is operated by a yard-move, rather than having to the Agency does not think it is someone without a CDL within a yard, switch to personal use, or trigger appropriate to include these definitions the mileage could be attributed to the

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individual. Generally, the short-haul track a driver’s every movement, FMCSA notes that the data captured by exception for RODS would mean these including whether a driver is sleeping, ELDs, such as time, location, and individuals would not be expected to this type of technology is not regularly mileage, combined with required use an ELD and there is nothing in this employed in electronic recorders used supporting documents, will result in a rulemaking that would preclude the to record drivers’ HOS. FMCSA does not more accurate record of a driver’s duty ELD system from having entry believe that Congress, in directing the status than paper RODS currently categories to capture occasional Agency to require use of ELDs, provide. movements of an ELD-equipped vehicle envisioned this level of monitoring and P. Roadside Enforcement by individuals who are not required to the inherent privacy invasion that prepare RODS. would occur. Indeed, given the privacy 1. Comments to the SNPRM FMCSA agrees that the carrier should concerns raised by OOIDA and other The SNPRM specified how the ELD commenters, we find it difficult to have the opportunity to review would transmit data to authorized safety reconcile OOIDA’s argument that the unassigned driver miles, as they are officials at roadside. The proposed ELD functionality required in today’s ultimately responsible for the records. primary method of data transmission rule is not sufficiently broad because it There is no prohibition on the motor was Wireless Web Services or Bluetooth does not record all of a driver’s duty carrier reviewing these records. FMCSA 2.1 or Email (SMTP) or compliant does not believe that this will be a statuses. In order to support its claim that printout. The proposed backup methods significant administrative burden, were USB 2.0, Scannable QR codes, or especially if all employees who have the FMCSA willfully ignores the definition of an ELD set forth in MAP–21, OOIDA TransferJet. An ELD must be able to potential to operate CMVs on company present a graph grid of driver’s daily property or beyond are given unique reads the statutory definition in isolation. However, a fundamental rule duty status changes either on a display identifiers. unit or on a printout. Today’s rule does not allow of statutory construction requires that a statutory provision be read in the Commenters believed that authorized ‘‘anchoring’’ or any location-based safety officials at road side do not have operational exemption. Drivers have the context of the statutory scheme and that no subsection be read in isolation. 2A the training or equipment to inspect option to select a yard moves status in vehicles with ELDs. FedEx stated that this case, and their operational history Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction there is concern in the industry about would need to be consistent with that uneven acceptance and use of the data status, which may look different § 46.5 (7th ed. 2007). As part of the MAP–21 enactment addressing ELDs, transfer mechanisms by law depending on different types of enforcement. Particularly, there is operations. Congress addressed the role of supporting documents, requiring the concern that some law enforcement O. Statutory Definition of ELD Agency to ‘‘consider how [the] officers will feel more comfortable reviewing paper records and will thus 1. Comments to the 2014 SNPRM regulations may . . . reduce or eliminate . . . supporting document[s] demand paper from drivers. If the Subsequent to the NPRM, Congress associated with paper-based [RODS] if driver’s ELD cannot print, then the enacted MAP–21, requiring regulations . . . data contained in an [ELD] officer may write a violation for failure mandating the use of ELDs by drivers of supplants such documentation . . . and to produce the required HOS CMVs required to keep RODS. The . . . using such data without paper- documents. To prevent this type of statute defines an electronic logging based records does not diminish the uneven enforcement, FedEx suggested device as a ‘‘device that . . . is capable Secretary’s ability to audit and review that FMCSA make clear in § 395.24 that of recording a driver’s [HOS] and duty compliance with [HOS] regulations[.]’’ a driver can provide his or her records status accurately and automatically . . . 49 U.S.C. 31137(d)(1). Supporting to law enforcement by printouts or by and . . . meets the requirements documents serve a critical role in data transfer. established by the Secretary through monitoring a driver’s ODND time. Had The UMA stated that it is essential regulation.’’ 49 U.S.C. 31137(f)(1). Congress envisioned that the ELD could that enforcement personnel are able to Focusing on the statutory definition of automatically track every duty status, it evaluate the accuracy of compliance in an ELD, OOIDA commented that would have simply eliminated the need the field. UMA has heard that a number FMCSA failed to comply with the for supporting documents. of field interventions do not include statutory directive enacted as part of FMCSA finds further support for its reviewing electronic logs. UMA MAP–21 in that an ELD is not ‘‘capable position in the applicable legislative suggested that expedited uniform of recording a driver’s hours of service history. In developing the ELD standards and training are critical to and duty status accurately and provisions incorporated into MAP–21, achieving the desired benefits of automatically.’’ 49 U.S.C. 31137(f)(1)(A). including the statutory definition, the compliance. OOIDA viewed the Agency’s action as Senate Committee on Commerce, OOIDA conducted a survey regarding ‘‘arbitrary, capricious and reason Science, and Transportation considered the frequency with which State roadside enough for any court to overturn the EOBRs then in use and referenced the inspections passed trucks monitored . . . rule.’’ Furthermore, OOIDA Agency’s February 1, 2010, NPRM, as to with EOBRs/ELDs through the emphasized that the majority of HOS the type of electronic recorders it inspection process without checking the violations result from the miscoding of envisioned. S. Rep. No. 112–238 at 4 trucker’s logs. OOIDA received over non-driving duty status. (2012). In prescribing the ELD mandate, 2,687 responses. Of those, 69 percent Congress was clearly aware that neither (2,069) reported that many trucks carry 2. FMCSA Response existing technology nor the Agency’s a sticker stating that it has an EOBR/ The Agency acknowledges that 2010 NPRM contemplated devices that ELD installed on the truck. The survey technical specifications in this rule do would ‘‘automatically’’ monitor a found that many responders reported not include ELDs that automatically driver’s non-driving hours. that a law enforcement official declined record a driver’s duty status, other than In response to OOIDA’s comment that to inspect the driver’s logs because the on-duty driving time. Although HOS violations result primarily from the official saw that the truck had a sticker. technology currently exists that could miscoding of non-driving duty time, Many responders also stated that they

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saw a law enforcement official passing this rulemaking, though they may be requirements pertaining to the use of on inspecting another driver’s logs related in some way to ELDs. For ELDs, the maintenance of supporting because the truck was equipped with an example, a number of comments are documents and the potential for ELD- EOBR/ELD. Further, numerous now out of scope because they dealt related harassment of drivers. responders reported that officers did not with the technical specifications of the Any substantive changes from the know how to operate the EOBRs/ELDs. (now vacated) April 2010 rule. SNPRM are noted. The SNPRM tied Responders to the survey reported the Commenters asked FMCSA to address compliance to the effective date of the practice of passing on inspection of a number of issues, such as changes to final rule. However, in order to reflect such trucks was evident throughout the or elimination of HOS rules—a matter the requirements of MAP–21, this rule country, with no particular area singled outside the scope of this rulemaking. ties compliance to the publication date. out. Commenters had suggestions about how A. Part 385—Safety Fitness Procedures A driver said he had heard similar drivers should be paid, including reports. He asked if poorly maintained payment by the hour and overtime after In Section VII of appendix B of part vehicles are also being overlooked. 40 hours. Commenters asked that 385, the list of acute and critical shippers and receivers be held regulations is modified to reflect 2. FMCSA Response accountable for HOS-related violations, changes in part 395 (HOS). The Agency FMCSA recognizes the potential detention times, or loading issues. removes the reference to a violation of challenges during the transition from A commenter asked FMCSA to raise § 390.36(b)(1) that appeared in the the current use of AOBRDs and paper the minimum insurance liability limits SNPRM to make this rule consistent logs to ELDs. Starting on the mandatory that truck drivers are required to carry, with the treatment of violations under compliance date of this rule, FMCSA and to implement requirements for the recent coercion rulemaking (80 FR expects standardized data—shared with improved underride guards. A 74695, November 30, 2015). This authorized safety officials by both commenter asked FMCSA to impose deletion does not affect the treatment electronic and non-electronic speed limiters; another opposed them. A under appendix B of part 385 of any methods—to make enforcement more commenter also asked FMCSA to underlying violation in a carrier’s safety efficient by increasing the ease of concentrate on maintenance issues. fitness determination. reading and interpreting data presented Commenters recommended that B. Part 386—Rules of Practice for Motor by ELDs. Today’s rule makes clear that FMCSA focus on all motorists, not just Carrier, Intermodal Equipment Provider, either the standard display or printout on commercial vehicles. A motor carrier Broker, Freight Forwarder, and will be available to ensure that CMVs wrote that whenever there is a crash Hazardous Materials Proceedings with ELDs can be inspected absent an involving a commercial vehicle, it goes electronic data transfer. on the history of that driver and 1. Section 386.1 (Scope of the Rules in To support a smooth transition period company even if they were not at fault. This Part) The commenter asked why we are not for the upcoming technological changes, FMCSA modifies this section to FMCSA has initiated early planning to getting this needed change accomplished first and then looking at reflect the handling of substantial implement today’s rule that will violations and harassment violations by facilitate comprehensive, consistent the fatality numbers. Commenters wrote that this the appropriate Division Administrator, enforcement. Today’s rule standardizes rather than the Division Administrator the data transfer and display options on rulemaking fails to address the parking shortage, and the problems drivers face for the State where the incident occurs ELDs. This standardization facilitates as was proposed. Paragraph (c) of this the ability of roadside officers to use the when they cannot find a safe place to park at the end of their shift, when they section was changed from the language ELD technology. While there will still of the SNPRM to make today’s rule be some unique functionality between are delayed, or when they run out of hours and are forced off property by a consistent with the recently published systems and vendors, the underlying coercion rule (80 FR 74695, November information and data will be customer. Numerous commenters emphasized that adequate training is 30, 2015), including the revision to and communicated to roadside officers in a changes in codification in § 386.12. consistent manner across all ELDs, essential for drivers, or criticized which will enhance roadside officers’ existing training. Some commenters Section 386.12 (Complaints) ability to enforce HOS rules during suggested that FMCSA go after inadequate driving schools or All of § 386.12, including the heading, roadside inspections. is changed and recodified to reflect the Authorized safety officials also will chameleon carriers. A commenter suggested that drivers have a panic recently published coercion rulemaking receive standardized training, which (80 FR 74695, November 30, 2015). will be scenario-driven and activity- button in the sleeper berth area to allow them to call law enforcement for help. What was proposed in § 386.12 is now based and focused on reading and included in paragraph (a) of that interpreting standardized data. The 2. FMCSA Response section, ‘‘complaint of substantial Agency believes that training focused on FMCSA is aware of the ongoing violation.’’ FMCSA changes this efficiently reading ELD data in a paragraph to provide that substantial standardized format will improve the concerns, as reflected in these comments, concerning drivers’ HOS, violation complaints must be filed ability of authorized safety officials to through the National Consumer conduct inspections and investigations. including parking issues, detention time, and hourly versus mileage Complaint Database and will be referred Q. Out of Scope Comments payments. However, many of the issues to the Division Administrator who the Agency believes will be best able to 1. 2011 NPRM and 2014 SNPRM raised are either outside the Agency’s authority or outside the scope of today’s handle the complaint. (Because any Commenters to both the 2011 NPRM rule. person may file a complaint alleging a and the SNPRM brought up a number of substantial violation, references to a issues that are outside the scope of this XIII. Section-By-Section Analysis driver’s State of employment found in rulemaking. Issues are out of scope if This rulemaking establishes technical § 386.12(b) and (c) are not included in they cannot be addressed or changed in specifications for ELDs and sets forth this paragraph.) The time for filing a

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complaint is extended from 60 to 90 findings of driver harassment. In 3. Section 395.7 (Enforcement days and the procedures are modified to assessing the amount of a civil penalty, Proceedings) closely track the procedures governing however, the Agency is required by Section 395.7, as proposed in the complaints under the coercion rule (80 statute to take certain factors into SNPRM, is included in today’s rule as FR 74695, November 30, 2015). account. See 5 U.S.C. 521(b)(2)(D). § 386.30. The only changes are stylistic. In a new paragraph (b), ‘‘complaint of Thus, the Agency will apply this 4. Section 395.8 (Driver’s Record of harassment,’’ FMCSA adds the material provision through its Uniform Fine Duty Status) that was proposed in § 386.12a. Assessment software to assure civil Harassment complaints are to be filed penalties are assessed in individual This section addresses general through the National Consumer cases in a fair manner while addressing requirements for HOS RODS. Subject to Complaint Database or with the Division the gravity of harassment violations. limited exceptions, it requires motor Administrator for the State where the carriers to install and use ELDs that driver is employed. Paragraph (b) C. Part 390—Federal Motor Carrier comply with the technical specifications identifies the information that a driver Safety Regulations; General no later than 2 years following the date needs to include in a written complaint of publication of today’s rule. alleging harassment by a motor carrier, FMCSA adds a new § 390.36 to define Subject to limited exceptions, under as well as procedures that the harassment by a motor carrier toward a paragraph (a)(1), motor carriers must appropriate Division Administrator driver employed by the motor carrier require drivers that keep RODS to use follows in handling complaints. The and to prohibit motor carriers from ELDs. The rule allows a motor carrier language in this paragraph was changed engaging in the harassment of drivers. that installs, and requires its drivers to from the SNPRM to reflect the language This section also identifies the process use, AOBRDs before the compliance in paragraph (c) of this section, adopted under which a driver who believes he date of this rule to continue to use as part of the coercion rulemaking (80 or she was subjected to harassment by AOBRDs until December 16, 2019 FR 74695, November 30, 2015). a motor carrier may file a written thereby providing a 2-year grandfather Paragraph (c), complaint of coercion, complaint. period for devices installed prior to the of this section was originally published compliance date. on November 30, 2015 as part of the D. Part 395—Hours of Service of Drivers Paragraph (a)(1)(iii) reflects a change coercion rulemaking (80 FR 74695). from the SNPRM. The SNPRM would Only changes are stylistic. Today’s rule divides part 395 into two have allowed the use of paper RODS subparts. Subpart A, General, includes only by drivers requiring RODS not 3. Section 386.12a §§ 395.1 through 395.19. Subpart B, more than 8 days in a 30-day period. Proposed § 386.12a is not included in ELDs, addresses the design and use of Today’s rule allows drivers in a today’s rule. Instead, the procedures ELDs and consists of §§ 395.20 through driveway-towaway operation—when the proposed in § 386.12a are moved to 395.38. FMCSA provides detailed vehicle being driven is part of the § 386.12(b). performance specifications applicable to shipment being delivered—as well as 4. Section 386.30 ELDs in the appendix to subpart B. drivers of vehicles that were manufactured before model year 2000 to Today’s rule adds § 386.30—a Subpart A—General also use paper RODS. provision that appeared as § 395.7 in the 1. Section 395.1 (Scope of Rules in This Paragraph (a)(1)(iv) provides that, SNPRM. The only changes are stylistic. Part) until the compliance date of this rule, This section adds procedural provisions motor carriers must require their drivers that apply during any proceeding FMCSA amends § 395.1(e) to reflect to keep RODS manually or by using involving the enforcement of 49 CFR that drivers who qualify to use the either an ELD or an AOBRD. part 395. Specifically, it provides that a short-haul exceptions under 49 CFR Paragraph (a)(2)(ii) is also changed motor carrier is liable for an employee 395.1(e)(1) or (2) are not required to from the SNPRM. The SNPRM would acting or failing to act in a manner that keep supporting documents under have required drivers to use the violates part 395 as long as the action is § 395.11. recording method required by their within the course of the motor carrier’s motor carrier and to submit their RODS operations. The burden of proof is on 2. Section 395.2 (Definitions) to their carrier within 8 days. Today’s the motor carrier to show that the rule requires drivers to submit their employee acted outside the scope of the In this section, FMCSA adds three RODS within 13 days. motor carrier’s operation. Finally, new definitions. ‘‘ELD record’’ is added Proposed paragraph (a)(3) is knowledge of any document in the to mean a record of duty status, eliminated because operating a CMV motor carrier’s possession, or available recorded on an ELD, that reflects the while the ELD is malfunctioning is to the motor carrier, that could be used data elements that must be captured by addressed in § 395.34(d). to ensure compliance with part 395 is an ELD under the technical Paragraph (e) prohibits a motor carrier imputed to the motor carrier. specifications in the Appendix to or driver from making a false report in subpart B of part 395. ‘‘Electronic connection with duty status and from 5. Appendix B to Part 386 (Penalty Logging Device (ELD)’’ is added to mean tampering with, or allowing another Schedule: Violations and Monetary person to tamper with, an AOBRD or Penalties) a device or technology that automatically records driving time and ELD to prevent it from recording or FMCSA adds new paragraph (a)(7) facilitates the accurate recording of HOS retaining accurate data. granting the Agency discretion to and that meets the requirements of Paragraph (i) (Filing driver’s record of consider the gravity of the driver subpart B of part 395. FMCSA also adds duty status) is eliminated because it harassment violation in the imposition duplicates the requirements of a definition of ‘‘supporting document’’ of penalties up to the maximum § 395.8(a)(2)(ii). Paragraph (k)(1) similar to the definition in the HMTAA. permitted by law. The addition of this continues to require a motor carrier to Substantive provisions pertaining to paragraph reflects the Agency’s retain RODS and supporting documents intention to appropriately address supporting documents are in § 395.11. for a 6-month period.

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5. Section 395.11 (New Section— communication records in applying the and listed on the Agency’s Web site: Supporting Documents) eight-document cap. Under paragraph www.fmcsa.dot.gov/devices. Paragraph (b) outlines the The detailed requirements concerning (d)(3), if a motor carrier has more than responsibilities of a motor carrier and its supporting documents are set forth in eight documents for a driver’s 24-hour support personnel authorized to access § 395.11. Paragraph (a) provides that the period, the motor carrier needs to retain ELD records. new supporting document provisions the documents containing the earliest and latest time indications. Under Paragraph (c) lists the required driver take effect 2 years after the publication identification data. date of the rule. Until this date, the June paragraph (d)(4), drivers who continue to use paper RODS must retain all toll Paragraph (d) details the 10, 2010 policy on the retention of identification data for motor carrier supporting documents and the use of receipts, irrespective of the eight- document requirement. The Agency support personnel. electronic mobile communication/ Paragraph (e) states that a motor tracking technology remains in place (75 interprets the reference to ‘‘toll receipts’’ to include electronic records. carrier must require its drivers and FR 32984). support personnel to use the proper log- Paragraph (b) addresses the drivers’ Paragraph (e) requires a motor carrier to retain supporting documents in a way in process for an ELD. obligation to submit supporting Paragraph (f) requires a motor carrier that allows the documents to be documents to their employers. While to calibrate and maintain ELDs. the SNPRM would have required the matched to a driver’s RODS. Paragraph (g) contains the driver to submit supporting documents Paragraph (f) prohibits motor carriers requirements for mounting portable within 8 days, today’s rule specifies 13 and drivers from obscuring, defacing, ELDs. days. (The term ‘‘employer’’ is defined destroying, mutilating, or altering Paragraph (h) lists the information a in § 390.5.) The phrase ‘‘required to be information in a supporting document. motor carrier is required to provide to retained under [§ 395.11]’’ is eliminated Paragraph (g) requires that, during a its drivers who are using ELDs in their in today’s rule to avoid the erroneous roadside inspection, drivers must make CMVs. implication that the driver, rather than available to an authorized official, any Paragraph (i) requires a motor carrier the motor carrier, determines what supporting document in the driver’s to retain a driver’s ELD records so as to records are retained. possession. In today’s rule, a paragraph protect the driver’s privacy in a manner Paragraph (c) describes five categories heading is added for clarification. consistent with sound business of supporting documents generated or Paragraph (h) describes the process practices. This paragraph also requires received in the normal course of for submitting requests for self- that the motor carrier retain a separate business. These categories include: (1) compliance systems that FMCSA may back-up copy of ELD records for six Bills of lading, itineraries, schedules, or authorize on a case-by-case basis, as months. equivalent documents indicating the required by HMTAA. Paragraph (j) requires a motor carrier to provide 6 months of ELD records origin and destination of a trip; (2) 6. Section 395.15 (Automatic On-Board electronically to authorized safety dispatch records, trip records, or Recording Devices) equivalent documents; (3) expense officials when requested during an receipts related to ODND time; (4) Paragraph (a) describes how FMCSA enforcement activity or, if the motor electronic mobile communication will sunset the authority to use AOBRDs carrier has multiple offices or terminals, records reflecting communications 2 years after the rule’s publication date. within the time permitted under transmitted through an FMS (e.g., text However, those motor carriers that have § 390.29. messages, email messages, instant installed AOBRDs prior to the sunset date are allowed to continue using 9. Section 395.24 (New Section—Driver messages, or pre-assigned coded Responsibilities—In General) messages); and (5) payroll records, AOBRDs for an additional 2 years (i.e., Paragraph (a) requires a driver to settlement sheets, or equivalent up to 4 years after the publication date provide data as prompted by the ELD documents reflecting driver payments. of the final rule). and as required by the motor carrier. Paragraph (c)(2) identifies the four Subpart B—Electronic Logging Devices Paragraph (b) lists the duty statuses data elements that a document must (ELDS) that a driver may choose from, contain in order to qualify as a corresponding to the duty status supporting document: Driver 7. Section 395.20 (New Section—ELD Applicability and Scope) categories currently listed on paper identification, date, vehicle location and RODS. time. The SNPRM provided that, for a Section 395.20 paragraph (a) states Paragraph (c) lists other data that a driver who had fewer than 10 that this subpart applies to ELDs used driver may sometimes need to enter supporting documents containing those to record a driver’s HOS. manually into the ELD, such as four data elements, documents Paragraph (b) describes the annotations, file comments, verification, containing the first three specified applicability of technical specifications CMV number, trailer numbers, and elements (i.e., all elements except time) required for ELDs under subpart B, shipping numbers, as applicable. would be considered supporting effective 2 years after the rule’s Paragraph (d) requires a driver to documents for purposes of paragraph (d) publication date. produce and transfer the driver’s HOS of this section (discussed below). In this In order to avoid confusion, proposed data to an authorized safety official on rule, FMCSA reduces the number of paragraph (c) was removed to eliminate request. supporting documents to eight. language referencing support systems. Paragraph (d) generally requires a 10. Section 395.26 (New Section—ELD motor carrier to retain a maximum of 8. Section 395.22 (New Section—Motor Data Automatically Recorded) Carrier Responsibilities—In General) eight documents for an individual Paragraph (a) notes that the data driver’s 24-hour duty day. While the Section 395.22 outlines motor elements listed in this section are in SNPRM proposed a 10-document cap, carriers’ responsibilities related to the accordance with the requirements of the today’s rule reduces that number to use of ELDs. Paragraph (a) requires appendix to subpart B of part 395. eight. Paragraph (d)(2) describes how motor carriers to use only ELDs Paragraph (b) lists the data elements FMCSA will treat electronic mobile registered and certified with FMCSA recorded when an ELD logs an event.

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Paragraph (c) describes requirements Paragraph (d) permits a motor carrier Paragraph (d) requires that a motor for data recording during a change of to request edits to a driver’s RODS in carrier take corrective action within 8 duty status event. order to ensure accuracy. It explains the days of discovering the malfunction of Paragraph (d) describes what an ELD process by which a driver implements an ELD, or notification of the records during an intermediate motor carrier-proposed edits, requiring malfunction by the driver, whichever recording when the CMV is in motion that a driver must confirm or reject any comes first. If a motor carrier needs and there has been no change of duty edits made to his or her record by additional time to repair, replace, or status entered into the ELD and no other anyone other than the driver. service one or more ELDs, paragraph (d) intermediate status recorded in an hour. Paragraph (e) prohibits a motor carrier also provides a process for requesting an Paragraph (e) describes what an ELD from coercing a driver to falsely certify extension of time from FMCSA. records when a driver selects a special the driver’s data entries or RODS. 15. Section 395.36 (New Section— driving category, i.e., personal use or FMCSA defined the term ‘‘coerce’’ in a Driver Access to Records) yard moves. separate rulemaking (80 FR 74695, Paragraph (f) describes what an ELD November 30, 2015). Paragraph (a) makes clear that drivers records when a driver certifies a daily Paragraph (f) prohibits a motor carrier must have access to their own ELD log. from altering or deleting original ELD records. A motor carrier may not require Paragraph (g) describes what an ELD records concerning the driver’s HOS, that its drivers access their own ELD records when there is a log in/log off the source data used to provide that records by requesting them through the event. information or related driver HOS motor carrier if those records are Paragraph (h) describes what an ELD information contained in any ELD. otherwise available on or retrievable records when the CMV’s engine powers Language referencing support systems through the ELD operated by the driver. on or off. proposed in the SNPRM was removed to Paragraph (b) requires a motor carrier Paragraph (i) describes an ELD’s avoid confusion. to provide a driver with access to the recording of location information during driver’s own ELD records, upon request, authorized personal use of a CMV. 13. Section 395.32 (New Section—Non- if they are unavailable through the ELD. Paragraph (j) describes what an ELD Authenticated Driver Logs) records when it detects a malfunction or 16. Section 395.38 (New Section— This section describes how the ‘‘non- Incorporation by Reference) data diagnostic event. authenticated’’ operation of a CMV is 11. Section 395.28 (New Section— accounted for in the ELD record. Section 395.38 describes materials Special Driving Categories; Other Paragraph (a) describes how the ELD that are incorporated by reference (IBR) Driving Statuses) tracks non-authenticated use of a CMV in subpart B of part 395 and addresses where the materials are available. Paragraph (a) allows motor carriers to as soon as the vehicle is in motion. Paragraph (b) requires a driver to Whenever FMCSA, or any Federal configure an ELD to authorize a driver review any unassigned driving time agency, wants to refer in its rules to to indicate that he or she is operating a materials or standards published CMV under one of the special driving listed under the account upon login to the ELD. If the unassigned records are elsewhere, it needs approval from the categories identified in this paragraph. Director of the Office of the Federal This paragraph also lists a driver’s not attributable to the driver, the driver Register. FMCSA describes the process responsibilities related to ELD use when must indicate that fact in the ELD it needs to follow in this section. operating under one of these special record. If driving time logged under this unassigned account belongs to the Industry best practices rely upon driving categories. these standards. FMCSA updated the Paragraph (b) allows a motor carrier to driver, the driver must add that driving standards proposed in the SNPRM in configure an ELD to show that a driver time to his or her own record. order to make the most recent, easily is exempt from ELD use. Paragraph (c) lists the requirements Paragraph (c) requires a driver for a motor carrier to explain or assign available versions of the applicable excepted under § 390.3(f) or § 395.1 to ‘‘non-authenticated driver log’’ time. standards part of the final rule. None of annotate the ELD record to explain why The motor carrier must retain these is a major version change; most the driver is excepted. unidentified driving records for at least are revisions to the standards that six months as a part of its HOS ELD should not be complicated or onerous 12. Section 395.30 (New Section—ELD records and make them available to for those ELD providers already working Record Submissions, Edits, Annotations authorized safety officials. in this field. Additionally, these and Data Retention) standards are technical in nature, and 14. Section 395.34 (New Section—ELD Paragraph (a) states that both drivers focus on the function of the device. The Malfunction and Data Diagnostic and motor carriers are responsible for only parties who will need to purchase Events) ensuring that drivers’ ELD records are these standards are parties who wish to accurate. Paragraph (a) sets forth a driver’s become ELD providers. Paragraph (b) requires a driver to recordkeeping requirements in the event The following provides a brief review and certify that the driver’s ELD of an ELD malfunction. It specifies that description of each standard. All the records are accurate and explains how the driver would need to provide standards are available for low cost or to use the certification function of the written notice to the motor carrier of an free, as noted below. In order to provide ELD. ELD malfunction within 24 hours. better access, FMCSA includes Web Paragraph (c) allows a driver, within Paragraph (b) explains what a driver addresses where the user can find more the edit limits of an ELD, to edit, add is required to do if the driver’s HOS information about the standard or missing information, and annotate ELD records are inspected during a download it. Complete contact recorded events. This paragraph states malfunction. information is included as part of that a driver must use an ELD and Paragraph (c) requires a driver to § 395.38. These standards are also follow the ELD’s prompts when making follow the ELD provider’s and the motor available for review at FMCSA such changes or annotations. It also carrier’s recommendations to resolve headquarters. explains how mistakes involving team data inconsistencies that generate an Paragraph (b)(1), American National drivers may be corrected. ELD data diagnostic event. Standard Institute ‘s (ANSI) ‘‘4–1986

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(R2012) Information Systems—Coded Paragraph (e)(1) contains the standard found at https://tools.ietf.org/html/ Character Sets—7-Bit American for ‘‘Use of the Advanced Encryption rfc7231. National Standard Code for Information Standard (AES) Encryption Algorithm Paragraph (e)(8) incorporates IETF’s Interchange (7-Bit ASCII),’’ describes a in Cryptographic Message Syntax ‘‘The Transport Layer Security (TLS) character set code to convert digits to (CMS)’’ This standard relates to wireless Protocol Version 1.2,’’, a security alphabet, number, and symbol data transfer through email. IBR in mechanism standard for information characters used in computing. This code section 4.10.1.2, Appendix to subpart B that is being transmitted over a network. set is used to create ELD files. IBR in of 395. As of October 20, 2015, this This standard is best known for use section 4.8.2.1, Appendix to subpart B standard was available at no cost, and with Web sites that start with of part 395. As of October 20, 2015, this can be found at https://tools.ietf.org/ ‘‘https://’’ rather than just ‘‘http://’’. standard was available for $60, and html/rfc3565. This standard will be used to secure information about it can be found at Paragraph (e)(2) references ‘‘Use of the data when ELD files are transferred http://webstore.ansi.org/Record RSASSA–PSS Signature Algorithm in using the Web. IBR in section 4.10.1.1, Detail.aspx?sku=INCITS+4-1986%5bR Cryptographic Message Syntax (CMS).’’ Appendix to subpart B of part 395. As 2012%5d. This standard relates to wireless data of October 20, 2015, this standard was Paragraph (b)(2), ANSI’s ‘‘ANSI transfer through email. IBR in section available at no cost and it can be found INCITS 446–2008 (R2013), American 4.10.1.2, Appendix to subpart B of 395 at https://tools.ietf.org/html/rfc5246. National Standard for Information of title 49 of the CFR. As of October 20, Paragraph (f)(1),’’Federal Information Technology—Identifying Attributes for 2015, this standard was available at no Processing Standards (FIPS) Publication Named Physical and Cultural cost, and can be found at https:// 197, November 26, 2001, Announcing Geographic Features (Except Roads and tools.ietf.org/html/rfc4056. the ADVANCED ENCRYPTION Highways) of the United States, Its Paragraph (e)(3), IETF’s ‘‘Simple Mail STANDARD (AES),’’ describes the Territories, Outlying Areas, and Freely Transfer Protocol,’’ is an industry National Institute of Standards and Associated Areas and the Waters of the standard for a computer networking Technology’s (NIST) Federal Same to the Limit of the Twelve-Mile protocol to send and receive electronic government standard for encrypting Statutory Zone (10/28/2008),’’ covers mail (email) containing ELD data. IBR in data in order to protect its geographic names and locations stored section 4.10.1.2, Appendix to subpart B confidentiality and integrity. This in the U.S. Geological Survey (USGS) of part 395. As of October 20, 2015, this standard may be used to encrypt Geographic Names Information System standard was available at no cost, and emailed data derived from the ELD. IBR (GNIS). This information is required to can be found at https://www.rfc- in sections 4.10.1.2 and 4.10.1.3, populate the location database of editor.org/rfc/rfc5321.txt. Appendix to subpart B of 395. As of compliant ELDs. IBR in section 4.4.2, Paragraph (e)(4) contains ‘‘Secure/ October 20, 2015, this standard is Appendix to subpart B of part 395. As Multipurpose Internet Mail Extensions available at no cost at http:// of October 20, 2015, this standard was (S/MIME).’’ This standard relates to csrc.nist.gov/publications/fips/fips197/ available for $60, and information about wireless data transfer through email. fips-197.pdf. it can be found at http:// IBR in section 4.10.1.2, Appendix to Paragraph (f)(2) describes ‘‘Special webstore.ansi.org/RecordDetail. subpart B of 395. As of October 20, Publication (SP) 800–32, February 26, aspx?sku=INCITS+446-2008%5bR 2015, this standard was available at no 2001, Introduction to Public Key 2013%5d. cost, and can be found at https:// Technology and the Federal PKI Paragraph (c)(1) describes tools.ietf.org/html/rfc5751. Infrastructure,’’ NIST’s guidance ‘‘Specification of the Bluetooth System: Paragraph (e)(5), IETF’s ‘‘Internet document for securely exchanging Wireless Connections Made Easy,’’ the Message Format,’’ describes an industry sensitive information, including some Bluetooth Special Interest Group’s standard for the formatting of email, (i.e. ELD data. IBR in section 4.10.1.2, standard for short range wireless address, header information, text, and Appendix to subpart B of 395. As of network communication. Under today’s attachments), including those emails October 20, 2015, this standard is rule, the standard could be used for a containing ELD data. IBR in section available at no cost at http:// transfer of ELD data. IBR in sections 4.10.1.2, Appendix to subpart B of part csrc.nist.gov/publications/nistpubs/800- 4.9.1, 4.9.2, 4.10.1.4, 4.10.2, Appendix 395. As of October 20, 2015, this 32/sp800-32.pdf. to subpart B of 395. As of October 20, standard was available at no cost, and Paragraph (g)(1) contains Universal 2015, this standard was available at no can be found at https://tools.ietf.org/ Serial Bus Implementers Forum’s cost, and information about it can be html/rfc5322. (USBIF) ‘‘Universal Serial Bus found at https://www.bluetooth.org/ Paragraphs (e)(6), IETF’s RFC 7230, Specification’’ or USB 2.0, which is an Technical/Specifications/adopted.htm. Hypertext Transfer Protocol—HTTP/1.1 industry standard for communication Paragraph (d)(1), Institute of Electric Message Syntax and Routing, and (e)(7), between two computing devices. The and Electronic Engineers’ (IEEE) IETF RFC 7231, Hypertext Transfer USB 2.0 allows a driver to transfer the ‘‘Standard for Authentication in Host Protocol—HTTP/1.1 Semantics and record of duty status data to a safety Attachments of Transient Storage Content, both describe a computer official using a small device commonly Devices,’’ describes a trust and networking protocol that is the called a ‘‘flash drive.’’ IBR in sections authentication protocol for USB 2.0 foundation for the World Wide Web. 4.9.1, 4.9.2, 4.10.1.3, and 4.10.2, flash drives and other storage devices These standards will be used if ELD Appendix to subpart B of part 395. As that can be used for a possible transfer files are transferred using the Web. They of October 20, 2015, this standard was of ELD data according to the are both incorporated by reference in available at no cost and it can be found specifications of this rule. IBR in section section 4.10.1.1, Appendix to subpart B at http://www.usb.org/developers/docs/ 4.10.1.3, Appendix to subpart B of part of part 395. As of October 20, 2015, usb20_docs/. 395. As of October 20, 2015, this standard RFC 7230 was available at no Paragraph (h)(1) describes ‘‘Simple standard was available for $185, and cost, and can be found at https:// Object Access Protocol (SOAP) Version information about it can be found at tools.ietf.org/html/rfc7230. As of 1.2 Part 1: Messaging Framework http://standards.ieee.org/findstds/ October 20, 2015, standard RFC 7231 (Second Edition), W3C standard/1667-2009.html. was available at no cost, and can be Recommendation 27 April 2007,’’

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W3C’s specification for a computer miles of the CMV’s movement’’ to describes the process that FMCSA uses networking protocol for Web services. clarify how the regulation applies to remove an ELD model or version from This protocol will be used if ELD files FMCSA revised proposed section 4.6.3.1 the list of ELDs on the FMCSA Web site. are transferred using the Web. IBR in to remove the last two paragraphs The administrative review process section 4.10.1.1, Appendix to subpart B because they are redundant. In section available to an ELD provider is of 395. As of October 20, 2015, this 4.7.2(b), FMCSA changed the reference described in section 5.4.5. The standard was available at no cost, and to ‘‘hours-of-service records’’ to ‘‘ELD administrative review process consists can be found at http://www.w3.org/TR/ records,’’ to clarify which records are of a two steps. First, an ELD provider soap12-part1/. meant. will have an opportunity to either cure FMCSA revises proposed section 4.8.1 any deficiency that the Agency 17. Appendix A to Subpart B of Part 395 to describe the compliant report that the (New Section) identified or explain to the Agency why, ELD must be able to generate either as in the ELD provider’s view, the Appendix A to subpart B of part 395 a printout or on a display. In addition, Agency’s determination is wrong. If the contains the technical requirements for FMCSA corrected the data elements in ELD provider fails to respond, fails to ELDs. It consists of seven sections. sections 4.8.2.1.5 and 4.8.2.1.9. convince the Agency that its decision is Section 1 outlines the purpose and Proposed section 4.9.1 is revised to erroneous, or fails to cure any defect to content of the rest of the appendix. remove the references to the proposed the Agency’s satisfaction, within Section 1 was recodified by adding roadside data transfer capabilities and prescribed time periods, the Agency letters and numbers to each paragraph add new methods for meeting roadside will then remove the ELD model or for ease of reference. electronic data reporting requirements. version from its list of certified Section 2 lists the abbreviations used The new methods require transferring products. Second, in the event of throughout this appendix. FMCSA electronic data using either Option 1, removal, the ELD provider will have an removes the abbreviation ‘‘QR’’ for wireless Web services and email, or additional opportunity to challenge the ‘‘quick response’’ because that Option 2, USB 2.0 and Bluetooth. In Agency’s decision through an technology is not included in today’s section 4.9.2(c), FMCSA replaces the administrative post-deprivation review. rule. term ‘‘ELD data file or files’’ with the Section 6 lists references cited Section 3 provides definitions for term ‘‘ELD records.’’ In paragraph (c), throughout this appendix. Section 6 is terms and notations used in this FMCSA also adds Bluetooth to the changed to conform with the new appendix. In the today’s rule, FMCSA transfer mechanisms already specified. codification in the rest of the appendix. codified section 3 throughout, adding Proposed section 4.10 is reorganized. Section 6 matches § 395.38 exactly. It is letters and numbers to each paragraph FMCSA revises proposed section 4.10.1 repeated in the appendix to provide a as necessary for ease of reference. to remove the word ‘‘Wireless’’ in the convenient guide for these standards FMCSA clarifies section 3.1.4 by adding heading, and add a reference to a ‘‘data within the Appendix to Subpart B itself. a specific reference to the display or transfer mechanism’’ to reflect the new To conform to § 395.38, FMCSA adds printout required in section 4.I methods of transferring electronic data. several new references to section 6, and Section 4 lists all the functional Proposed section 4.10.1.2, which updates others to the current versions. requirements for an ELD. This section described wireless data transfer via FMCSA also removes several references provides a detailed description of the Bluetooth, is moved to new section that are no longer relevant to the technical specifications for an ELD, 4.10.1.4. Proposed section 4.10.1.3, rulemaking. including security requirements, which described wireless data transfer Section 7 provides a data elements internal engine synchronization, ELD through email, is moved to 4.10.1.2. In dictionary for each data element inputs, manual entries of data, and addition, in new section 4.10.1.2(b), referenced in the appendix. In today’s drivers’ use of multiple vehicles. FMCSA adds three new encryption rule, FMCSA adds a new data element FMCSA provides descriptions specific standards: The Secure/Multipurpose to section 7, ‘‘ELD provider,’’ to clarify enough to allow the ELD provider to Internet Mail Extensions as described in what is meant by that term. Section 7 is determine whether an ELD would meet RFC 5751, the RSA algorithm as recodified to conform with the the requirements for certification. described in RFC 4056, and RFC 3565. codification used in the rest of the FMCSA made numerous changes to Proposed section 4.10.2.1, which covers appendix. proposed section 4, which reflect the USB 2.0, becomes new section 4.10.1.3, simplified data transfer requirements in but the rest of proposed section 4.10.2 XIV. Regulatory Analyses today’s rule. FMCSA recodified section is removed as part of the reorganization. 4 throughout, due to changes in the text Proposed sections 4.10.2.2, which A. Executive Order 12866 (Regulatory and for ease of reference. FMCSA has pertained to scannable QR codes, and Planning and Review), Executive Order eliminated language referencing support 4.10.2.3, which described TransferJet, 13563 (Improving Regulation and systems that was proposed in are both removed because those Regulatory Review), and DOT § 395.20(c) to avoid confusion. technologies are not included in today’s Regulatory Policies and Procedures Throughout section 4, FMCSA made rule. The rest of 4.10.2, as appropriate, FMCSA has determined that this conforming changes. is moved to section 4.8.1. Proposed rulemaking is an economically In section 4.2, FMCSA adds a specific section 4.10.3 becomes section 4.10.2. significant regulatory action under reference to the information that the FMCSA adds a new paragraph to section Executive Order (E.O.) 12866, ELD must receive automatically, and 4.10.2(d) to describe Bluetooth. Regulatory Planning and Review, as clarifies that the use of non-ECM data is Section 5 describes the ELD supplemented by E.O. 13563 (76 FR only acceptable when there is no other certification and registration process. 3821, January 21, 2011). It also is option. In section 4.5, FMCSA changed FMCSA numbered the paragraphs in significant under Department of the references to section 7 to reflect the Section 5 for ease of reference and made Transportation regulatory policies and codification changes in section 7. In related conforming changes. In section procedures because the economic costs section 4.6.1.4, FMCSA changed the 5.2.2, the phrase ‘‘institute an’’ is and benefits of the rule exceed the $100 phrase ‘‘within the past 5 miles of the corrected to read ‘‘identify its.’’ FMCSA million annual threshold and because of CMV’s movement’’ to read ‘‘within 5 adds section 5.4 to the appendix, which the substantial congressional and public

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interest concerning the crash risks that reflect public comments regarding • Option 2 (Adopted): ELDs are associated with driver fatigue. past ELD and HOS rulemakings and the mandated for all CMV operations where FMCSA mandates the installation and Agency’s safety priorities. The RIA the driver is required to complete RODS use of ELDs by drivers currently associated with this rule examined two under 49 CFR 395.8. required to prepare HOS RODS.41 options: FMCSA adopted Option 2. The costs However, the costs and benefits of such • a broad mandate are not identical across Option 1: ELDs are mandated for all and benefits resulting from the adoption both options evaluated in the RIA. The CMV operations subject to 49 CFR part of Option 2 are presented in the table Agency has chosen to evaluate options 395. below:

TABLE 5—SUMMARY OF ANNUALIZED COSTS AND BENEFITS [7% discount rate]

Annualized total value Notes (2013 $ millions)

Cost element: New ELD Costs ...... $1,032.2 For all long-haul (LH) and short-haul (SH) drivers that use RODS, to pay for new devices and FMS upgrades. Automatic On-Board Recording Device 2.0 Carriers that purchased AOBRDs for their CMVs and can be predicted to (AOBRD) Replacement Costs. still have them in 2019 and would need to replace or update them with ELDs. Enforcement Equipment Costs ...... 1.3 The final rule does not require inspectors to purchase QR code scanners. Instead, inspectors would have Bluetooth capability and USB 2.0. Enforcement Training Costs ...... 1.6 Costs include travel to training sites, as well as training time, for all in- spectors in the first year and for new inspectors each year thereafter. CMV Driver Training Costs ...... 8.0 Costs of training new drivers in 2017, and new drivers each year there- after. HOS Compliance Costs ...... 790.4 Extra drivers and CMVs needed to ensure that no driver exceeds HOS limits.

Total Costs ...... 1,836

Benefit element: Paperwork Savings (Total of three parts $2,437.6 below). (1) Driver Time ...... 1,877.2 Reflects time saved as drivers no longer have to fill out and submit paper RODS. (2) Clerical Time ...... 433.9 Reflects time saved as office staff no longer have to process paper RODS. (3) Paper Costs ...... 126.6 Purchases of paper logbooks are no longer necessary. Safety (Crash Reductions) ...... 572.2 Although the predicted number of crash reductions is lower for SH than LH drivers, both should exhibit less fatigued driving if HOS compliance increases. Complete HOS compliance is not assumed.

Total Benefits ...... 3,010

Net Benefits ...... 1,174

Modifications to the rule analysis decrease in costs. Overall, the total costs Small Business Regulatory Enforcement resulted in moderate changes to the cost are somewhat higher than what was Fairness Act of 1996 (Pub. L. 104–121, and benefit estimates for the rule from projected in the SNPRM. In addition, 110 Stat. 857, March 29, 1996) and the what was included in the SNPRM. For the total benefits of the rule increased Small Business Jobs Act of 2010 (Pub. example, the purchase price of the ELD due to updated wage estimates and L. 111–240, September 27, 2010), was reduced to reflect the most up-to- adjustments to the projection of the cost requires Federal agencies to consider date prices consistent with the technical of a crash. This resulted in an increase the effects of the regulatory action on requirements of the rule, the population in the overall net benefits for the rule small business and other small entities estimates were adjusted to update the from what was proposed in the SNPRM. and to minimize any significant universe of drivers subject to the These revisions are discussed in more economic impact. The term ‘‘small requirements of the rule, and equipment detail throughout the RIA. entities’’ comprises small businesses requirements for inspectors were B. Regulatory Flexibility Act and not-for-profit organizations that are adjusted to no longer include QR independently owned and operated and 1. Introduction scanners. The population changes had are not dominant in their fields, and the effect of increasing costs, while The Regulatory Flexibility Act of governmental jurisdictions with adjustments to the ELD purchase price 1980, Public Law 96–354, 94 Stat. 1164 populations of less than 50,000. and equipment needs resulted in a (5 U.S.C. 601–612), as amended by the Accordingly, DOT policy requires an

41 This rule does not require short-haul drivers Although FMCSA cannot quantify the costs to mandate to these drivers would not be cost who would need to keep RODS for not more than carriers, the Agency believes that extending the ELD beneficial. 8 days in any 30-day period to use an ELD.

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analysis of the impact of all regulations 2. Statement of the Need for and associated with the RODS and on small entities, and mandates that Objectives of This Rule significantly reduce the time drivers agencies strive to lessen any adverse The Agency is issuing this rule to spend recording their HOS. These effects on these businesses. mandate the use of ELDs by the majority paperwork reductions offset most of the A Final Regulatory Flexibility of CMV operations. The objective is to costs of the devices. Analysis must contain the following: reduce the number of crashes caused by 3. Public Comment on the IRFA, • A statement of the need for, and driver fatigue that could have been FMCSA Assessment and Response objectives of, the rule. avoided had the driver complied with • A statement of the significant issues the HOS rules. Although public comment on the The Agency is required by statute raised by the public comments in SNPRM for this rule was extensive, (MAP–21) to adopt regulations requiring response to the Initial Regulatory there were no comments specific to the that CMVs operated in interstate Flexibility Act (IRFA), a statement of the Initial Regulatory Flexibility Analysis. commerce by drivers required to keep assessment of the agency of such issues, RODS, be equipped with ELDs. FMCSA 4. FMCSA Response to Comments by and a statement of any changes made in amends part 395 of the FMCSRs to the Chief Counsel for Advocacy of the the proposed rule as a result of such require the installation and use of ELDs Small Business Administration on the comments. for CMV operations for which RODS are IRFA • The response of the agency to any required. CMV drivers are currently The FMCSA did not receive comments filed by the Chief Counsel for required to record their HOS (driving Advocacy of the Small Business comments from the Chief Counsel for time, on- and off-duty time) in paper Advocacy of the Small Business Administration in response to the RODS, although some carriers have proposed rule, and a detailed statement Administration on the IRFA included voluntarily adopted an earlier standard with the SNPRM for this rule. of any change made to the proposed rule for HOS recording using devices known in the final rule as a result of the as AOBRDs. The HOS regulations are 5. Description and Numerical Estimate comments. intended to ensure that driving time of Small Entities Affected by the • A description of and an estimate of ‘‘do[es] not impair their ability to Rulemaking the number of small entities to which operate the vehicles safely’’ (49 U.S.C. the rule will apply or an explanation of 31136(a)(2)). Driver compliance with the The motor carriers regulated by why no such estimate is available. HOS rules helps ensure that ‘‘the FMCSA operate in many different industries, and no single Small Business • A description of the projected physical condition of commercial motor vehicle drivers is adequate to enable Administration (SBA) size threshold is reporting, recordkeeping, and other applicable to all motor carriers. Most compliance requirements of the rule, them to operate the vehicles safely’’ (49 U.S.C. 31136(a)(3)). FMCSA believes for-hire property carriers operate under including an estimate of the classes of North American Industrial small entities which will be subject to that properly designed, used, and maintained ELDs would enable motor Classification System 42 (NAICS) code the requirement and the type of 484, truck transportation (see: http:// professional skills necessary for carriers to track their drivers’ on-duty driving hours accurately, thus www.bls.gov/iag/tgs/iag484.htm), preparation of the report or record. although some for-hire carriers • preventing regulatory violations or A description of the steps the excessive driver fatigue. categorize themselves as ‘‘express agency has taken to minimize the Improved HOS compliance would delivery services’’ (NAICS 492110) or significant economic impact on small prevent commercial vehicle operators ‘‘local delivery’’ (NAICS 492210) or entities consistent with the stated from driving for long periods without operate primarily in other modes of objectives of applicable statutes, opportunities to obtain adequate rest. freight transportation. As shown in including a statement of the factual, Sufficient rest is necessary to ensure Table 6 below, the SBA size standard for policy, and legal reasons for selecting that a driver is alert behind the wheel truck transportation and local delivery the alternative adopted in the final rule and able to respond appropriately to services is currently $27.5 million in and why each of the other significant changes in the driving environment. revenue per year and 1,500 employees alternatives to the rule considered by Substantial paperwork and for express delivery services. For other the agency which affect the impact on recordkeeping burdens are also firms in other modes that may also be small entities was rejected. associated with HOS rules, including registered as for-hire motor carriers, the • For a covered agency, as defined in time spent by drivers filling out and size standard is 500 or 1,500 employees. section 609(d)(2), a description of the submitting paper RODS and time spent As Table 6 also shows, for-hire steps the agency has taken to minimize by motor carrier staff reviewing, filing, passenger operations that FMCSA any additional cost of credit for small and retaining these RODS. ELDs would regulates have a size standard of $15 entities. eliminate all of the driver’s clerical tasks million in annual revenue.

TABLE 6—SBA SIZE STANDARDS FOR SELECTED INDUSTRIES [2014 $]

Annual NAICS codes NAICS industry description revenue Employees (millions)

481112 and 481212 ...... Freight Air Transportation ...... 1,500 482111 ...... Line-Haul Railroads ...... 1,500 483111 through 483113 ...... Freight Water Transportation ...... 500 484110 through 484230 ...... Freight Trucking ...... $27.5

42 More information about NAICS is available at: http://www.census.gov/eos/www/naics/.

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TABLE 6—SBA SIZE STANDARDS FOR SELECTED INDUSTRIES—Continued [2014 $]

Annual NAICS codes NAICS industry description revenue Employees (millions)

492110 ...... Couriers and Express Delivery ...... 1,500 492210 ...... Local Messengers and Local Delivery ...... 27.5 ...... 485210 through 485510 ...... Bus Transportation ...... 15.0 ...... 445110 ...... Supermarkets and Grocery Stores ...... 32.5 ...... 452111 ...... Department Stores (except Discount Department Stores) ...... 32.5 ...... 452112 ...... Discount Department Stores ...... 29.5 ...... 452910 ...... Warehouse Clubs and Superstores ...... 29.5 ...... 452990 ...... Other General Merchandise Stores ...... 32.5 ...... 453210 ...... Office Supplies and Stationery Stores ...... 32.5 ...... 236115 through 236220 ...... Building Construction ...... 36.5 ...... 237110 ...... Water and Sewer Line and Related Structures Construction ...... 36.5 ...... 237120 ...... Oil and Gas Pipeline and Related Structures Construction ...... 36.5 ...... 237130 ...... Power and Communication Line and Related Structures Construction ... 36.5 ...... 237210 ...... Land Subdivision ...... 27.5 ...... 237310 ...... Highway, Street, and Bridge Construction ...... 36.5 ...... 237990 ...... Other Heavy and Civil Engineering Construction ...... 36.5 ...... 238110 through 238990 ...... Specialty Trade Contractors ...... 15.0 ...... 111110 through 111998 ...... Crop Production ...... 0.75 ...... 112111 ...... Beef Cattle Ranching and Farming ...... 0.75 ...... 112112 ...... Cattle Feedlots ...... 7.5 ...... 112120 ...... Dairy Cattle and Milk Production ...... 0.75 ...... 112210 ...... Hog and Pig Farming ...... 0.75 ...... 112310 ...... Chicken Egg Production ...... 15.0 ...... 112320 through 112990 ...... All Other Animal Production ...... 0.75 ...... 113310 ...... Logging ...... 500 211111 through 213111 ...... Oil and Gas Extraction and Mining ...... 500

This rulemaking will also affect for the revenue categories used in the percentile in terms of number of CMVs private motor carriers. These carriers Economic Census do not exactly of for-hire property carriers will be use CMVs they own or lease to ship coincide with the SBA thresholds, large. In the case of for-hire property their own goods (such as a motor carrier FMCSA was able to make reasonable carriers, we assumed that carriers in the that is operated by a retail department estimates using these data. According to 97th percentile will also be large. That store chain to distribute goods from its the Economic Census, about 99 percent is, any company of sufficient size to warehouses to its store locations) or in of trucking firms had annual revenue maintain a fleet large enough to be other regulated transportation activities less than $27.5 million; the Agency considered a large truck or bus company related to their primary business concluded that the percentage would be will be large within its own industry. activities (for example, dump trucks approximately the same using the SBA This could overestimate the number of used by construction companies). The threshold of $25.5 million as the small, private carriers. However, the latter category also includes the boundary. For passenger carriers, the Agency is confident that no small provision of passenger transportation $15 million SBA threshold falls between private carrier would be excluded. The services not available to the general two Economic Census revenue Agency found that for property carriers, public. FMCSA does not have NAICS categories, $10 million and $25 million. the threshold was 194 CMVs, and that codes for motor carriers and therefore The percentages of passenger carriers for passenger carriers, it was 89 CMVs. cannot determine the appropriate size with revenue less than these amounts FMCSA identified 195,818 small private standard to use for each case. As shown, were 96.7 percent and 98.9 percent. property carriers (99.4 percent of this the size standards vary widely, from Because the SBA threshold is closer to group), and 6,000 small private $0.75 million for many types of farms to the lower of these two boundaries, passenger carriers (100.0 percent of this $36.5 million for building construction FMCSA has assumed that the group). firms. percentage of passenger carriers that are The table below shows the complete For for-hire motor carriers, FMCSA small will be closer to 96.7 percent, and estimates of the number of small examined data from the 2007 Economic is using a figure of 97 percent. carriers. All told, FMCSA estimates that Census 43 to determine the percentage of For private carriers, the Agency 99.1 percent of regulated motor carriers firms that have revenue at or below constructed its estimates under the are small businesses according to SBA SBA’s thresholds. Although boundaries assumption that carriers in the 99th size standards.

43 U.S. Census Bureau, ‘‘2007 Economic Census.’’ http://www.census.gov/econ/census/.

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TABLE 7—ESTIMATES OF NUMBERS OF SMALL ENTITIES

For-hire For-hire general specialized For-hire Private Private Total freight freight passenger property passenger

Carriers ...... 176,000 152,000 8,000 197,000 6,000 539,000 Percentage of Small Carriers ...... 98.9% 98.9% 97.0% 99.4% 100.0% 99.1% Number of Small Carriers ...... 174,064 150,328 7,760 195,818 6,000 533,970

6. Description of Reporting, Service of Drivers,’’ will alter or impose least one provider, however, provides Recordkeeping and Other Compliance ICR. The ICR of this rule will affect free hardware and recoups the cost of Requirements of the Rule OMB Control Number 2126–0001, the device over time in the form of FMCSA believes that implementation which is currently approved through higher monthly operating fees. The of the rule will not require additional May 31, 2018, at 127,600,000 burden Agency is also aware of lease-to-own reporting, recordkeeping, or other hours. programs that allow carriers to spread the purchase costs over several years. paperwork-related compliance 7. Steps To Minimize Adverse Nevertheless, the typical carrier will requirements beyond what are already Economic Impacts on Small Entities required in the existing regulations. In likely be required to spend about $584 Of the population of motor carriers per CMV to purchase and install ELDs. fact, the rule is estimated to result in that FMCSA regulates, 99 percent are In addition to purchase costs, carriers paperwork savings, particularly from considered small entities under SBA’s will also likely spend about $20 per the elimination of paper RODS. definition. Because small businesses month per CMV for monthly service Furthermore, the carriers will constitute a large part of the fees. experience compensatory time-saving or demographic the Agency regulates, administrative efficiencies as a result of providing exemptions to small business 8. Description of Steps Taken by a using ELD records in place of paper to permit noncompliance with safety Covered Agency To Minimize Costs of RODS. The level of savings will vary regulations is not feasible and not Credit for Small Entities with the size of the carrier consistent with good public policy. The FMCSA is not a covered agency as implementing the systems (larger safe operation of CMVs on the Nation’s defined in section 609(d)(2) of the carriers generally experience greater highways depends on compliance with Regulatory Flexibility Act, and has savings). all of FMCSA’s safety regulations. taken no steps to minimize the Under current regulations, most CMV Accordingly, the Agency will not allow additional cost of credit for small drivers are required to fill out RODS for any motor carriers to be exempt from entities. every 24-hour period. The remaining coverage of the rule based solely on a C. Unfunded Mandates Reform Act of population of CMV drivers is required status as a small entity. Furthermore, 1995 to fill out time cards at their workplace exempting small businesses from (reporting location). Motor carriers must coverage would be inconsistent with the Title II of the Unfunded Mandates retain the RODS (or timecards, if used) explicit statutory mandate contained in Reform Act of 1995 requires Agencies to for 6 months. FMCSA estimates annual MAP–21. evaluate whether an Agency action recordkeeping cost savings from this The Agency recognizes that small would result in the expenditure by rule of about $805 per driver. This businesses may need additional State, local, and tribal governments, in comprises $558 for a reduction in time information and guidance in order to the aggregate, or by the private sector, of drivers spend completing paper RODS comply with the regulation. To improve $155 million or more (which is $100 and $65 submitting those RODS to their their understanding of the rule, FMCSA million in 1995, adjusted for inflation) employers; $144 for motor carrier intends to conduct outreach aimed in any 1 year, and, if so, to take steps clerical staff to handle and file the specifically at small businesses, to minimize these unfunded mandates. RODS; and $38 for elimination of including webinars and other As Table 8 shows, this rulemaking expenditures on blank paper RODS for presentations upon request as needed would result in private sector drivers. One of the options discussed in and at no charge to the participants. expenditures in excess of the $155 the rule (Option 1) would extend the These sessions will be held after the million threshold for each of the ELD mandate to carrier operations that rule has published and before the rule’s options. Gross costs, however, are are exempt from the RODS compliance date. To the extent expected to be more than offset in requirements. Paperwork savings would practicable, these presentations will be savings from paperwork burden not accrue to drivers engaged in these interactive. They will describe in plain reductions. operations. language the compliance and reporting The Agency is required by statute to Under the Paperwork Reduction Act requirements so they are can be readily adopt regulations requiring that CMVs, of 1995 (PRA) (44 U.S.C. 3501 et seq.), understood by the small entities that operated in interstate commerce by Federal agencies must obtain approval will be affected. drivers required to keep RODS, be from OMB for each collection of ELDs can lead to significant equipped with ELDs (49 U.S.C. 31137). information they conduct, sponsor, or paperwork savings that can offset the To the extent this rule implements the require through regulations. This rule costs of the devices. The Agency, direction of Congress in mandating the makes regulatory changes to several however, recognizes that these devices use of ELDs, a written statement under parts of the FMCSRs, but only those entail an up-front investment that can the Unfunded Mandates Reform Act is applicable to part 395, ‘‘Hours of be burdensome for small carriers. At not required.44 However, the Agency

44 Unfunded Mandates Reform Act of 1995. Title II, Section 201. http://www.gpo.gov/fdsys/pkg/ PLAW-104publ4/pdf/PLAW-104publ4.pdf.

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provides its projection of the annualized below. Additionally the Agency’s and highest net benefits of the options costs to the private sector in Table 8 adopted option provides the lowest cost considered.

TABLE 8—ANNUALIZED NET EXPENDITURES BY PRIVATE SECTOR [2013 $ millions]

Cost or Savings Category Option 1 Option 2

New ELD Costs ...... $1,336 $1,032 AOBRD Replacement Costs ...... 2 2 HOS Compliance Costs ...... 929 790 Driver Training Costs ...... 10 8

Total Costs ...... 2,278 1,833

Total Savings (Paperwork) ...... 2,438 2,438

Net Expenditure by Private Sector ...... ¥160 ¥605

D. Executive Order 12988 (Civil Justice consultation on Federal programs and but following discussions with OMB, Reform) activities do not apply to this action. decided the burden of these drivers should be included in future part 395 This rulemaking meets applicable I. Executive Order 13175 (Consultation estimates. The intrastate burden was standards in sections 3(a) and 3(b)(2) of and Coordination With Indian Tribal included in the estimate approved by E.O. 12988, Civil Justice Reform, to Governments) OMB on May 21, 2015, and is included minimize litigation, eliminate FMCSA analyzed this rulemaking in in the Agency’s burden estimate for this ambiguity, and reduce burden. accordance with the principles and final rule. E. Executive Order 13045 (Protection of criteria in E.O. 13175, Consultation and FMCSA estimates that 3.37 million Children) Coordination with Indian Tribal interstate and intrastate CMV drivers are Governments. This rulemaking is subject to the IC requirements of part FMCSA analyzed this action under required by law and does not 395 as of 2013. OMB regulations require E.O. 13045, Protection of Children from significantly or uniquely affect the that Agencies estimate IC burdens over Environmental Health Risks and Safety communities of the Indian tribal a period of 3 years. This rule has a Risks. FMCSA determined that this governments or impose substantial compliance date 2 years from the date rulemaking would not pose an direct compliance costs on tribal of its publication. Thus, during the first environmental risk to health or safety governments. Thus, the funding and 2 years of this PRA estimate, drivers and that might affect children consultation requirements of E.O. 13175 motor carriers will not be required to disproportionately. do not apply and no tribal summary employ ELDs. The Agency has F. Executive Order 12630 (Taking of impact statement is required. incorporated estimates of the number of Private Property) J. Paperwork Reduction Act drivers who will be voluntarily employing electronic HOS recording This rulemaking would not effect a The Paperwork Reduction Act of 1995 devices during each of the first 2 years. taking of private property or otherwise (44 U.S.C. 3501 et seq.) requires Federal For year three, the Agency’s estimate is have takings implications under E.O. agencies to obtain OMB approval of based upon all drivers using electronic 12630, Governmental Actions and each information collection (IC) they logging devices. FMCSA estimates that Interference with Constitutionally conduct, sponsor, or require through the part 395 amendments of this final Protected Property Rights. agency regulations. Information- rule will reduce the IC burden an collection requests (ICRs) submitted to G. Executive Order 13132 (Federalism) average of 21,373,653 hours annually for OMB by agencies must estimate the the 3-year period. A rulemaking has implications for burden hours imposed by their Federalism under E.O. 13132, information-collection (IC) K. National Environmental Policy Act Federalism, if it has a substantial direct requirements. Part 395 of the Federal and Clean Air Act effect on State or local governments and Motor Carrier Safety Regulations, FMCSA analyzed this rulemaking for would either preempt State law or ‘‘Hours of Service of Drivers,’’ requires the purpose of the National impose a substantial direct cost of drivers and motor carriers to collect, Environmental Policy Act of 1969 (42 compliance on State or local transmit and maintain information U.S.C. 4321, et seq.) and determined governments. FMCSA analyzed this about driver daily activities. The part under DOT Environmental Procedures action in accordance with E.O. 13132. 395 ICR is assigned OMB Control Order 5610.1, issued March 1, 2004 (69 The rule would not have a substantial Number 2126–0001. On May 21, 2015, FR 9680), that this action would have a direct effect on States or local OMB approved the Agency’s estimate of minor impact on the environment. The governments, nor would it limit the 127.6 million burden hours as the Environmental Assessment is available policymaking discretion of States. annual IC burden of part 395 as it for inspection or copying at the Nothing in this rulemaking would existed at that time, prior to this final Regulations.gov Web site listed under preempt any State law or regulation. rule. This rulemaking substantially Section II.A of this preamble. There amends the IC requirements of part 395. were two notable changes to data input H. Executive Order 12372 For the SNPRM of this rulemaking (79 values used in section 3.2.1 of the (Intergovernmental Review) FR 17656, March 28, 2014), the Agency Environmental Assessment for today’s The regulations implementing E.O. excluded the IC burden of drivers rule as compared to the equivalent 12372 regarding intergovernmental operating purely in intrastate commerce, values used in the Environmental

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Assessment for the SNPRM. First, in the drivers and motor carriers to use ELDs Agency’s deliberations would result in calculation of emissions from additional that would lead to greater compliance high and adverse environmental justice idling, the number of affected long-haul with the HOS regulations, which does impacts. tractors with sleeper berths was not directly result in additional increased from 665,000, which was emissions releases. M. Executive Order 13211 (Energy based on year 2002 data, to a revised Although emissions from idling are Effects) foreseeable and an indirect result of the estimate of 976,889 to reflect growth in FMCSA analyzed this action under rulemaking, in order for the idling the number of truck tractors from 2002 E.O. 13211, Actions Concerning emissions to qualify as ‘indirect to 2012 as reported by the Federal Regulations That Significantly Affect emissions’ pursuant to 40 CFR 93.152, Highway Administration. For additional Energy Supply, Distribution, or Use. details, see section 3.2.1 of the they must meet all four criteria in the FMCSA determined that it is not a Environmental Assessment. Second, in definition: (1) The emissions are caused ‘‘significant energy action’’ under that the calculation of the reduction of or initiated by the Federal action and E.O. because, although this rulemaking emissions from crash prevention, the originate in the same nonattainment or is economically significant, it is not emission rates per crash for the six maintenance area but occur at a Environmental Protection Agency different time or place as the action; (2) likely to have an adverse effect on the criteria pollutants and for carbon they are reasonably foreseeable; (3) supply, distribution, or use of energy. dioxide were updated from values that FMCSA can practically control them; N. National Technology Transfer and were previously based on FMCSA and (4) FMCSA has continuing program Advancement Act research from 2004 regarding the responsibility for them. FMCSA does environmental impacts of truck crashes, not believe the increase of emissions of The National Technology Transfer to revised emission rate values that are some criteria pollutants or their and Advancement Act (15 U.S.C. 272 based on more recent FMCSA research precursors from the proposed note) requires agencies to ‘‘use technical from 2013 regarding the environmental rulemaking meet two of the criteria: standards that are developed or adopted impacts of truck crashes. For additional That FMCSA can practically control the by voluntary consensus standards details, see section 3.2.1 of the emissions, and that FMCSA has bodies’’ to carry out policy objectives Environmental Assessment. continuing program responsibility. determined by the agencies, unless the FMCSA also analyzed this action FMCSA’s statutory authority limits its standards are ‘‘inconsistent with under section 176(c) of the Clean Air ability to require drivers to choose applicable law or otherwise Act (CAA), as amended (42 U.S.C. alternatives to idling while taking a rest impractical.’’ This requirement pertains 7506(c)), and the U.S. Environmental period. If FMCSA had authority to to ‘‘performance-based or design- Protection Agency’s implementing control CMV emissions, the Agency specific technical specifications and regulations, 40 CFR part 93. Pursuant to could prohibit idling or require drivers related management systems practices.’’ 40 CFR 93.153, a conformity to choose an alternative such as MAP–21 also requires that the Agency determination is required ‘‘for each electrified truck stops or use of auxiliary adopt a ‘‘standard security level for an criteria pollutant or precursor where the power units, both of which reduce electronic logging device and related total of direct and indirect emissions of idling emissions. Moreover, based on components to be tamper resistant by the criteria pollutant or precursor in a FMCSA’s analysis, it is reasonably using a methodology endorsed by a nonattainment or maintenance area foreseeable that this rulemaking would nationally recognized standards caused by a Federal action would equal not significantly increase total CMV organization’’ (49 U.S.C. 31137(b)(2)(C)). or exceed any of the rates in paragraphs mileage, nor would it change the routing (b)(1) or (2) of this section.’’ FMCSA FMCSA is not aware of any technical of CMVs, how CMVs operate, or the standards addressing ELDs. However, in recognizes that the action taken in this CMV fleet mix of motor carriers. rulemaking could slightly affect today’s rule, the Agency employs Therefore, because the idling emissions several publicly-available consensus emissions of criteria pollutants from do not meet the definition of direct or CMVs. FMCSA discusses the air standards consistent with these indirect emissions in 40 CFR 93.152, statutory mandates, including standards emissions analysis in section 3.2.1 of FMCSA has determined it is not the Environmental Assessment for this adopted by the World Wide Web required to perform a CAA general Consortium to facilitate secure Web rule. conformity analysis, pursuant to 40 CFR As discussed in section 3.1.2 of the based communications, American 93.153.45 Environmental Assessment, the CAA National Standards Institute (ANSI) requires additional analysis to L. Executive Order 12898 codes for identification of geographic determine if this action impacts air (Environmental Justice) locations and for standard information display, Institute of Electrical and quality. In determining whether this FMCSA evaluated the environmental Electronic Engineers (IEEE) Standards action conforms to CAA requirements in effects of this rulemaking in accordance Association standards addressing secure areas designated as nonattainment with E.O. 12898 and determined that transfer of data with a portable storage under section 107 of the CAA and there are neither environmental justice device, Bluetooth Special Interest Group maintenance areas established under issues associated with its provisions nor (SIG) standards addressing short-range section 175A of the CAA, FMCSA is any collective environmental impact wireless information transfer, and the required (among other criteria) to resulting from its promulgation. USB Specification (Revision 2.0). In determine if the total direct and indirect Environmental justice issues would be addition, although not developed by a emissions are at or above de minimis raised if there were ‘‘disproportionate’’’ private sector consensus standard body, levels. In the case of the alternatives in and ‘‘high and adverse impact’’ on FMCSA also employs the National this rulemaking, as discussed in section minority or low-income populations. Institute of Standards and Technology 3.2.1 of the Environmental Assessment None of the alternatives analyzed in the (except for the No-Action Alternative), (NIST) standards concerning data FMCSA considers the change in 45 Additionally, the EPA General Conformity encryption. A complete list of standards emissions to be an indirect result of the regulations provide an exemption for rulemaking that FMCSA proposes for adoption is rulemaking action. FMCSA is requiring activities. See 40 CFR 93.153(c)(2)(iii). found in 49 CFR 395.38.

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O. E-Government Act of 2002 ■ 2. Amend Appendix B to part 385, § 386.1 Scope of rules in this part. The E-Government Act of 2002, section VII, by removing the entries for (a) Except as provided in paragraph Public Law 107–347, section 208, 116 §§ 395.8(a), 395.8(e), and 395.8(i), and (c) of this section, the rules in this part Stat. 2899, 2921 (Dec. 17, 2002), the two entries for § 395.8(k)(1); and govern proceedings before the Assistant requires Federal agencies to conduct a adding entries for § 395.8(a)(1), Administrator, who also acts as the privacy impact assessment for new or § 395.8(a)(2)(ii), § 395.8(e)(1), Chief Safety Officer of the Federal Motor substantially changed technology that § 395.8(e)(2), § 395.8(k)(1), § 395.11(b), Carrier Safety Administration, under collects, maintains, or disseminates § 395.11(c), § 395.11(e), § 395.11(f), and applicable provisions of the Federal information in an identifiable form. § 395.30(f) in numerical order to read as Motor Carrier Safety Regulations (49 FMCSA completed an assessment in follows: CFR parts 350–399), including the connection with today’s rule addressing Appendix B to Part 385—Explanation commercial regulations (49 CFR parts the handling of PII. The assessment is a of Safety Rating Process 360–379), and the Hazardous Materials documented assurance that privacy Regulations (49 CFR parts 171–180). * * * * * issues have been identified and * * * * * adequately addressed, ensures VII. List of Acute and Critical Regulations (c)(1) The rules in § 386.12(a) govern compliance with laws and regulations * * * * * the filing of a complaint of a substantial related to privacy, and demonstrates the § 395.8(a)(1) Failing to require a driver to violation and the handling of the DOT’s commitment to protect the prepare a record of duty status using complaint by the appropriate Division privacy of any personal information we appropriate method (critical). Administrator. collect, store, retrieve, use, and share. § 395.8(a)(2)(ii) Failure to require a driver (2) The rules in § 386.12(b) govern the Additionally, the publication of the to submit record of duty status in a timely filing by a driver and the handling by assessment demonstrates DOT’s manner (critical). the appropriate Division Administrator § 395.8(e)(1) Making, or permitting a driver commitment to provide appropriate of a complaint of harassment in to make, a false report regarding duty status violation of § 390.36 of this subchapter. transparency in the ELD rulemaking (critical). process. A copy of the privacy impact § 395.8(e)(2) Disabling, deactivating, (3) The rules in § 386.12(c) govern the assessment is available in the docket for disengaging, jamming, or otherwise blocking filing by a driver and the handling by this rulemaking. or degrading a signal transmission or the appropriate Division Administrator reception; tampering with an automatic on- of a complaint of coercion in violation List of Subjects board recording device or ELD; or permitting of § 390.6 of this subchapter. 49 CFR Part 385 or requiring another person to engage in such ■ 5. Revise § 386.12 to read as follows: activity (acute). Administrative practice and § 395.8(k)(1) Failing to preserve a driver’s § 386.12 Complaints. procedure, Highway safety, Mexico, record of duty status or supporting (a) Complaint of substantial violation. Motor carriers, Motor vehicle safety, documents for 6 months (critical). (1) Any person alleging that a § 395.11(b) Failing to require a driver to Reporting and recordkeeping substantial violation of any regulation requirements submit supporting documents in a timely manner (critical). issued under the Motor Carrier Safety 49 CFR Part 386 § 395.11(c) Failing to retain types of Act of 1984 is occurring or has occurred must file a written complaint with Administrative practice and supporting documents as required by § 395.11(c) (critical). FMCSA stating the substance of the procedure, Brokers, Freight forwarders, § 395.11(e) Failing to retain supporting alleged substantial violation no later Hazardous materials transportation, documents in a manner that permits the than 90 days after the event. The written Highway safety, Motor carriers, Motor effective matching of the documents to the complaint, including the information vehicle safety, Penalties driver’s record of duty status (critical). below, must be filed with the National 49 CFR Part 390 § 395.11(f) Altering, defacing, destroying, Consumer Complaint Database at http:// mutilating, or obscuring a supporting nccdb.fmcsa.dot.gov or any FMCSA Highway safety, Intermodal document (critical). transportation, Motor carriers, Motor § 395.30(f) Failing to retain ELD Division Administrator. The Agency vehicle safety, Reporting and information (acute). will refer the complaint to the Division Administrator who the Agency believes recordkeeping requirements * * * * * is best able to handle the complaint. 49 CFR Part 395 PART 386—RULES OF PRACTICE FOR Information on filing a written Highway safety, Incorporation by MOTOR CARRIER, INTERMODAL complaint may be obtained by calling 1– reference, Motor carriers, Reporting and EQUIPMENT PROVIDER, BROKER, 800–DOT–SAFT (1–800–368–7238). A recordkeeping requirements FREIGHT FORWARDER, AND substantial violation is one which could reasonably lead to, or has resulted in, In consideration of the foregoing, HAZARDOUS MATERIALS PROCEEDINGS serious personal injury or death. Each FMCSA amends 49 CFR chapter III, complaint must be signed by the parts 385, 386, 390, and 395 as follows: ■ 3. The authority citation for part 386 complainant and must contain: PART 385—SAFETY FITNESS is revised to read as follows: (i) The name, address, and telephone PROCEDURES number of the person who files it; Authority: 49 U.S.C. 113, 504, 521(b), (ii) The name and address of the 5105(e), 5109, 5123, 13901–13905, 31133, ■ 1. The authority citation for part 385 alleged violator and, with respect to 31135, 31136, 31137, 31144, 31148, and each alleged violator, the specific is revised to read as follows: 31502; Sec. 113(a), Pub. L. 103–311; Sec. 408, provisions of the regulations that the Authority: 49 U.S.C. 113, 504, 521(b), Pub. L. 104–88, 109 Stat. 803, 958; and 49 5105(e), 5109, 5123, 13901–13905, 31133, CFR 1.87. complainant believes were violated; and 31135, 31136, 31137, 31144, 31148, and (iii) A concise but complete statement 31502; Sec. 113(a), Pub. L. 103–311; Sec. 408, ■ 4. Amend § 386.1 by revising of the facts relied upon to substantiate Pub. L. 104–88, 109 Stat. 803, 958; and 49 paragraph (a) and adding paragraph (c) each allegation, including the date of CFR 1.87. to read as follows: each alleged violation.

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(2) Upon the filing of a complaint of (A) How the ELD or other technology another Division Administrator who the a substantial violation under paragraph used in combination with and not Agency believes is best able to handle (a)(1) of this section, the Division separable from the ELD was used to the complaint. Information on filing a Administrator shall determine whether contribute to harassment; written complaint may be obtained by the complaint is non-frivolous and (B) The date of the alleged action; and calling 1–800–DOT–SAFT (1–800–368– meets the requirements of paragraph (C) How the motor carrier’s action 7238). Each complaint must be signed (a)(1) of this section. If the Division violated either § 392.3 or part 395. by the driver and must contain: Administrator determines the complaint Each complaint may include any (i) The driver’s name, address, and is non-frivolous and meets the supporting evidence that will assist the telephone number; requirements of paragraph (a)(1), the Division Administrator in determining Division Administrator shall investigate (ii) The name and address of the the merits of the complaint. person allegedly coercing the driver; the complaint. The complainant shall be (2) Upon the filing of a complaint of timely notified of findings resulting a violation under paragraph (b)(1) of this (iii) The provisions of the regulations from the investigation. The Division section, the appropriate Division that the driver alleges he or she was Administrator shall not be required to Administrator shall determine whether coerced to violate; and conduct separate investigations of the complaint is non-frivolous and (iv) A concise but complete statement duplicative complaints. If the Division meets the requirements of paragraph of the facts relied upon to substantiate Administrator determines the complaint (b)(1) of this section. is frivolous or does not meet the each allegation of coercion, including (i) If the Division Administrator the date of each alleged violation. requirements of paragraph (a)(1), the determines the complaint is non- Division Administrator shall dismiss the (2) Action on complaint of coercion. frivolous and meets the requirements of complaint and notify the complainant in Upon the filing of a complaint of paragraph (b)(1) of this section, the writing of the reasons for the dismissal. coercion under paragraph (c)(1) of this Division Administrator shall investigate (3) Notwithstanding the provisions of section, the appropriate Division the complaint. The complaining driver 5 U.S.C. 552, the Division Administrator Administrator shall determine whether shall be timely notified of findings shall not disclose the identity of the complaint is non-frivolous and resulting from the investigation. The complainants unless it is determined meets the requirements of paragraph Division Administrator shall not be that such disclosure is necessary to (c)(1). prosecute a violation. If disclosure required to conduct separate investigations of duplicative (i) If the Division Administrator becomes necessary, the Division determines that the complaint is non- Administrator shall take every practical complaints. (ii) If the Division Administrator frivolous and meets the requirements of means within the Division paragraph (c)(1) of this section, the Administrator’s authority to ensure that determines the complaint is frivolous or does not meet the requirements of Division Administrator shall investigate the complainant is not subject to the complaint. The complaining driver coercion, harassment, intimidation, paragraph (b)(1) of this section, the Division Administrator shall dismiss the shall be timely notified of findings disciplinary action, discrimination, or resulting from such investigation. The financial loss as a result of such complaint and notify the complainant in Division Administrator shall not be disclosure. writing of the reasons for the dismissal. required to conduct separate (b) Complaint of harassment. (1) A (3) Because prosecution of harassment driver alleging a violation of in violation of § 390.36(b)(1) of this investigations of duplicative § 390.36(b)(1) of this subchapter subchapter will require disclosure of the complaints. (harassment) must file a written driver’s identity, the Agency shall take (ii) If the Division Administrator complaint with FMCSA stating the every practical means within its determines the complaint is frivolous or substance of the alleged harassment by authority to ensure that the driver is not does not meet the requirements of a motor carrier no later than 90 days subject to coercion, harassment, paragraph (c)(1) of this section, the after the event. The written complaint, intimidation, disciplinary action, Division Administrator shall dismiss the including the information described discrimination, or financial loss as a complaint and notify the driver in below, must be filed with the National result of the disclosure. This will writing of the reasons for the dismissal. include notification that 49 U.S.C. Consumer Complaint Database at http:// (3) Protection of complainants. 31105 includes broad employee nccdb.fmcsa.dot.gov or the FMCSA Because prosecution of coercion in protections and that retaliation for filing Division Administrator for the State violation of § 390.6 of this subchapter a harassment complaint may subject the where the driver is employed. The will require disclosure of the driver’s motor carrier to enforcement action by Agency may refer a complaint to identity, the Agency shall take every the Occupational Safety and Health another Division Administrator who the practical means within its authority to Administration. Agency believes is best able to handle ensure that the driver is not subject to (c) Complaint of coercion. (1) A driver the complaint. Information on filing a coercion, harassment, intimidation, alleging a violation of § 390.6(a)(1) or (2) written complaint may be obtained by disciplinary action, discrimination, or of this subchapter must file a written calling 1–800–DOT–SAFT (1–800–368– financial loss as a result of the complaint with FMCSA stating the 7238). Each complaint must be signed disclosure. This will include substance of the alleged coercion no by the driver and must contain: notification that 49 U.S.C. 31105 later than 90 days after the event. The (i) The driver’s name, address, and includes broad employee protections written complaint, including the telephone number; and that retaliation for filing a coercion information described below, must be (ii) The name and address of the complaint may subject the alleged filed with the National Consumer motor carrier allegedly harassing the coercer to enforcement action by the Complaint Database at http:// driver; and Occupational Safety and Health (iii) A concise but complete statement nccdb.fmcsa.dot.gov or the FMCSA Administration. of the facts relied upon to substantiate Division Administrator for the State each allegation of harassment, where the driver is employed. The ■ 6. Add § 386.30 to subpart D to read including: Agency may refer a complaint to as follows:

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§ 386.30 Enforcement proceedings under ■ 9. Add § 390.36 to read as follows: provided in this paragraph, a driver is part 395. exempt from the requirements of (a) General. A motor carrier is liable § 390.36 Harassment of drivers prohibited. §§ 395.3(a)(2), 395.8, and 395.11 and for any act or failure to act by an (a) Harass or harassment defined. As ineligible to use the provisions of employee, as defined in § 390.5 of this used in this section, harass or § 395.1(e)(1), (g), and (o) if: harassment means an action by a motor subchapter, that violates any provision * * * * * carrier toward a driver employed by the of part 395 of this subchapter if the act ■ 13. Amend § 395.2 by adding or failure to act is within the course of motor carrier (including an independent contractor while in the course of definitions for Electronic logging device the motor carrier’s operations. The fact (ELD), ELD record, and Supporting that an employee may be liable for a operating a commercial motor vehicle on behalf of the motor carrier) involving document, in alphabetical order, to read violation in a proceeding under this as follows: subchapter, based on the employee’s act the use of information available to the or failure to act, does not affect the motor carrier through an ELD, as § 395.2 Definitions. liability of the motor carrier. defined in § 395.2 of this chapter, or * * * * * (b) Burden of proof. Notwithstanding through other technology used in Electronic logging device (ELD) means any other provision of this subchapter, combination with and not separable a device or technology that the burden is on a motor carrier to prove from the ELD, that the motor carrier automatically records a driver’s driving that the employee was acting outside knew, or should have known, would time and facilitates the accurate the scope of the motor carrier’s result in the driver violating § 392.3 or recording of the driver’s hours of operations when committing an act or part 395 of this subchapter. service, and that meets the requirements failing to act in a manner that violates (b) Prohibition against harassment. (1) of subpart B of this part. any provision of part 395 of this No motor carrier may harass a driver. ELD record means a record of duty (2) Nothing in paragraph (b)(1) of this subchapter. status, recorded on an ELD, that reflects section shall be construed to prevent a (c) Imputed knowledge of documents. the data elements that an ELD must motor carrier from using technology A motor carrier shall be deemed to have capture. allowed under this subchapter to knowledge of any document in its * * * * * possession and any document that is monitor productivity of a driver provided that such monitoring does not Supporting document means a available to the motor carrier and that document, in any medium, generated or the motor carrier could use in ensuring result in harassment. (c) Complaint process. A driver who received by a motor carrier in the compliance with part 395 of this normal course of business as described subchapter. ‘‘Knowledge of any believes he or she was the subject of harassment by a motor carrier may file in § 395.11 that can be used, as document’’ means knowledge of the fact produced or with additional identifying that a document exists and the contents a written complaint under § 386.12(b) of this subchapter. information, by the motor carrier and of the document. enforcement officials to verify the ■ 7. Amend appendix B to part 386 by PART 395—HOURS OF SERVICE OF accuracy of a driver’s record of duty adding paragraph (a)(7) to read as DRIVERS status. follows: * * * * * ■ 10. The authority citation for part 395 Appendix B to Part 386—Penalty ■ 14. Amend § 395.8 by: continues to read as follows: Schedule; Violations and Monetary ■ a. Revising paragraphs (a) and (e), Penalties Authority: 49 U.S.C. 504, 31133, 31136, ■ b. Removing and reserving paragraph 31137, and 31502; sec. 113, Pub. L. 103–311, (i), and * * * * * 108 Stat. 1673, 1676; sec. 229, Pub. L. 106– ■ c. Revising the heading of paragraph (a) * * * 159 (as transferred by sec. 4115 and amended (k), and paragraph (k)(1) to read as (7) Harassment. In instances of a violation by secs. 4130–4132, Pub. L. 109–59, 119 Stat. of § 390.36(b)(1) of this subchapter the 1144, 1726, 1743, 1744); sec. 4133, Pub. L. follows: Agency may consider the ‘‘gravity of the 109–59, 119 Stat. 1144, 1744; sec. 108, Pub. § 395.8 Driver’s record of duty status. violation,’’ for purposes of 49 U.S.C. L. 110–432, 122 Stat. 4860–4866; sec. 32934, 521(b)(2)(D), sufficient to warrant imposition Pub. L. 112–141, 126 Stat. 405, 830; and 49 (a)(1) Except for a private motor of penalties up to the maximum permitted by CFR 1.87. carrier of passengers (nonbusiness), as law. defined in § 390.5 of this subchapter, a ■ 11. Redesignate § 395.1 through * * * * * motor carrier subject to the § 395.15 as subpart A, and add a new requirements of this part must require PART 390—FEDERAL MOTOR subpart heading to read as follows: each driver used by the motor carrier to CARRIER SAFETY REGULATIONS; Subpart A—General record the driver’s duty status for each GENERAL 24-hour period using the method ■ 12. Amend § 395.1 by revising the prescribed in paragraphs (a)(1)(i) ■ 8. The authority citation for part 390 introductory text of paragraphs (e)(1) through (iv) of this section, as is revised to read as follows: and (e)(2) to read as follows: applicable. Authority: 49 U.S.C. 504, 508, 31132, (i) Subject to paragraphs (a)(1)(ii) and 31133, 31134, 31136, 31137, 31144, 31151, § 395.1 Scope of rules in this part. (iii) of this section, a motor carrier 31502; sec. 114, Pub. L. 103–311, 108 Stat. * * * * * operating commercial motor vehicles 1673, 1677–1678; sec. 212, 217, Pub. L. 106– (e) * * * must install and require each of its 159, 113 Stat. 1748, 1766, 1767; sec. 229, (1) 100 air-mile radius driver. A driver drivers to use an ELD to record the Pub. L. 106–159 (as transferred by sec. 4115 is exempt from the requirements of driver’s duty status in accordance with and amended by secs. 4130–4132, Pub. L. § 395.8 and § 395.11 if: 109–59, 119 Stat. 1144, 1726, 1743–1744); subpart B of this part no later than sec. 4136, Pub. L. 109–59, 119 Stat. 1144, * * * * * December 18, 2017. 1745; sections 32101(d) and 34934, Pub. L. (2) Operators of property-carrying (ii) A motor carrier that installs and 112–141, 126 Stat. 405, 778, 830; sec. 2, Pub. commercial motor vehicles not requiring requires a driver to use an automatic on- L. 113–125, 128 Stat. 1388; and 49 CFR 1.87. a commercial driver’s license. Except as board recording device in accordance

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with § 395.15 before December 18, 2017 (3) No driver or motor carrier may unit number can be associated with the may continue to use the compliant permit or require another person to driver operating the unit; automatic on-board recording device no disable, deactivate, disengage, jam, or (B) The date, which must be the date later than December 16, 2019. otherwise block or degrade a signal at the location where the date is (iii)(A) A motor carrier may require a transmission or reception, or reengineer, recorded; driver to record the driver’s duty status reprogram, or otherwise tamper with an (C) The location, which must include manually in accordance with this automatic on-board recording device or the name of the nearest city, town, or section, rather than require the use of an ELD so that the device does not village to enable Federal, State, or local ELD, if the driver is operating a accurately record and retain required enforcement personnel to quickly commercial motor vehicle: data. determine a vehicle’s location on a (1) In a manner requiring completion * * * * * standard map or road atlas; and of a record of duty status on not more (i) [Reserved] (D) Subject to paragraph (c)(2)(ii) of than 8 days within any 30-day period; this section, the time, which must be * * * * * convertible to the local time at the (2) In a driveaway-towaway operation (k) Retention of driver’s record of duty in which the vehicle being driven is part location where it is recorded. status and supporting documents. (1) A (ii) If a driver has fewer than eight of the shipment being delivered; or motor carrier shall retain records of duty (3) That was manufactured before supporting documents containing the status and supporting documents four data elements under paragraph model year 2000. required under this part for each of its (B) The record of duty status must be (c)(2)(i) of this section for a 24-hour drivers for a period of not less than 6 period, a document containing the data recorded in duplicate for each 24-hour months from the date of receipt. period for which recording is required. elements under paragraphs (c)(2)(i)(A) * * * * * The duty status shall be recorded on a through (C) of this section is considered specified grid, as shown in paragraph (g) ■ 15. Add § 395.11 to read as follows: a supporting document for purposes of paragraph (d) of this section. of this section. The grid and the § 395.11 Supporting documents. requirements of paragraph (d) of this (d) Maximum number of supporting (a) Effective date. This section takes section may be combined with any documents. (1) Subject to paragraphs effect December 18, 2017. company form. (d)(3) and (4) of this section, a motor (b) Submission of supporting carrier need not retain more than eight (iv) Subject to paragraphs (a)(1)(i) documents to motor carrier. Except through (iii) of this section, until supporting documents for an individual drivers for a private motor carrier of driver’s 24-hour period under paragraph December 18, 2017, a motor carrier passengers (nonbusiness), a driver must operating commercial motor vehicles (c) of this section. submit to the driver’s employer the (2) In applying the limit on the shall require each of its drivers to record driver’s supporting documents within number of documents required under the driver’s record of duty status: 13 days of either the 24-hour period to paragraph (d)(1) of this section, each (A) Using an ELD that meets the which the documents pertain or the day electronic mobile communication requirements of subpart B of this part; the document comes into the driver’s record applicable to an individual (B) Using an automatic on-board possession, whichever is later. driver’s 24-hour period shall be counted recording device that meets the (c) Supporting document retention. (1) as a single document. requirements of § 395.15; or Subject to paragraph (d) of this section, (3) If a motor carrier has more than (C) Manually, recorded on a specified a motor carrier must retain each eight supporting documents for a grid as shown in paragraph (g) of this supporting document generated or driver’s 24 hour period, the motor section. The grid and the requirements received in the normal course of carrier must retain the supporting of paragraph (d) of this section may be business in the following categories for documents containing the earliest and combined with any company form. The each of its drivers for every 24-hour the latest time indications among the record of duty status must be recorded period to verify on-duty not driving eight supporting documents retained. in duplicate for each 24-hour period for time in accordance with § 395.8(k): (4) In addition to other supporting which recording is required. (i) Each bill of lading, itinerary, documents required under this section, (2) A driver operating a commercial schedule, or equivalent document that and notwithstanding the maximum motor vehicle must: indicates the origin and destination of number of documents under paragraph (i) Record the driver’s duty status each trip; (d)(1) of this section, a motor carrier that using one of the methods under (ii) Each dispatch record, trip record, requires a driver to complete a paper paragraph (a)(1) of this section; and or equivalent document; record of duty status under (ii) Submit the driver’s record of duty (iii) Each expense receipt related to § 395.8(a)(1)(iii) must maintain toll status to the motor carrier within 13 any on-duty not driving time; receipts for any period when the driver days of the 24-hour period to which the (iv) Each electronic mobile kept paper records of duty status. record pertains. communication record, reflecting (e) Link to driver’s record of duty * * * * * communications transmitted through a status. A motor carrier must retain (e)(1) No driver or motor carrier may fleet management system; and supporting documents in such a manner make a false report in connection with (v) Each payroll record, settlement that they may be effectively matched to a duty status. sheet, or equivalent document that the corresponding driver’s record of (2) No driver or motor carrier may indicates payment to a driver. duty status. disable, deactivate, disengage, jam, or (2)(i) A supporting document must (f) Prohibition of destruction. No otherwise block or degrade a signal include each of the following data motor carrier or driver may obscure, transmission or reception, or reengineer, elements: deface, destroy, mutilate, or alter reprogram, or otherwise tamper with an (A) On the document or on another existing information contained in a automatic on-board recording device or document that enables the carrier to link supporting document. ELD so that the device does not the document to the driver, the driver’s (g) Supporting documents at roadside. accurately record and retain required name or personal identification number (1) Upon request during a roadside data. (PIN) or a unit (vehicle) number if the inspection, a driver must make available

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to an authorized Federal, State, or local 395.24 Driver responsibilities—In general. used as, or as part of, the username for official for the official’s review any 395.26 ELD data automatically recorded. the account created on an ELD. supporting document in the driver’s 395.28 Special driving categories; other (d) Motor carrier support personnel possession. driving statuses. identification data. The ELD user (2) A driver need not produce a 395.30 ELD record submissions, edits, annotations, and data retention. account assigned by a motor carrier to supporting document under paragraph 395.32 Non-authenticated driver logs. support personnel requires the (g)(1) of this section in a format other 395.34 ELD malfunctions and data following data elements: than the format in which the driver diagnostic events. (1) The individual’s first and last possesses it. 395.36 Driver access to records. name, as reflected on a government (h) Self-compliance systems. (1) 395.38 Incorporation by reference. issued identification; and FMCSA may authorize on a case-by-case Appendix A to Subpart B of Part 395— (2) A unique ELD username selected basis motor carrier self-compliance Functional Specifications for All by the motor carrier. Electronic Logging Devices (ELDS) systems. (e) Proper log-in required. The motor (2) Requests for use of a supporting Subpart B—Electronic Logging carrier must require that its drivers and document self-compliance system may Devices (ELDs) support personnel log into the ELD be submitted to FMCSA under the system using their proper identification procedures described in 49 CFR part § 395.20 ELD applicability and scope. data. 381, subpart C (Procedures for Applying (a) Scope. This subpart applies to (f) Calibration. A motor carrier must for Exemptions). ELDs used to record a driver’s hours of ensure that an ELD is calibrated and (3) FMCSA will consider requests service under § 395.8(a). maintained in accordance with the concerning types of supporting (b) Applicability. An ELD used after provider’s specifications. documents retained by a motor carrier December 18, 2017 must meet the (g) Portable ELDs. If a driver uses a under § 395.8(k)(1) and the method by requirements of this subpart. portable ELD, the motor carrier shall which a driver retains a copy of the ensure that the ELD is mounted in a record of duty status for the previous 7 § 395.22 Motor carrier responsibilities—In fixed position during the operation of general. days and makes it available for the commercial motor vehicle and inspection while on duty in accordance (a) Registered ELD required. A motor visible to the driver when the driver is with § 395.8. carrier required to use an ELD must use seated in the normal driving position. ■ 16. Amend § 395.15 by revising only an ELD that is listed on the Federal (h) In-vehicle information. A motor paragraph (a) to read as follows: Motor Carrier Safety Administration’s carrier must ensure that its drivers registered ELDs list, accessible through possess onboard a commercial motor § 395.15 Automatic on-board recording the Agency’s Web site, devices. vehicle an ELD information packet www.fmcsa.dot.gov/devices. containing the following items: (a) Authority to use. (1) A motor (b) User rights management. (1) This (1) A user’s manual for the driver carrier that installs and requires a driver paragraph applies to a motor carrier describing how to operate the ELD; to use an automatic on-board recording whose drivers use ELDs and to the (2) An instruction sheet for the driver device in accordance with this section motor carrier’s support personnel who describing the data transfer mechanisms before December 18, 2017 may continue have been authorized by the motor supported by the ELD and step-by-step to use the compliant automatic on-board carrier to access ELD records and make instructions for the driver to produce recording device no later than December or suggest authorized edits. and transfer the driver’s hours-of-service (2) A motor carrier must: 16, 2019. Otherwise, the authority to use records to an authorized safety official; (i) Manage ELD accounts, including automatic on-board recording devices (3) An instruction sheet for the driver under this section ends on December 18, creating, deactivating, and updating accounts, and ensure that properly describing ELD malfunction reporting 2017. requirements and recordkeeping (2) In accordance with paragraph authenticated individuals have ELD procedures during ELD malfunctions; (a)(1) of this section, a motor carrier may accounts with appropriate rights; and require a driver to use an automatic on- (ii) Assign a unique ELD username to (4) A supply of blank driver’s records board recording device to record the each user account with the required of duty status graph-grids sufficient to driver’s hours of service. user identification data; record the driver’s duty status and other (3) Every driver required by a motor (iii) Ensure that a driver’s license used related information for a minimum of 8 carrier to use an automatic on-board in the creation of an ELD driver account days. recording device shall use such device is valid and corresponds to the driver (i) Record backup and security. (1) A to record the driver’s hours of service. using the ELD account; and motor carrier must retain for 6 months * * * * * (iv) Ensure that information entered to create a new account is accurate. a back-up copy of the ELD records on §§ 395.16–395.19 [Added and Reserved] (c) Driver identification data. (1) The a device separate from that on which the original data are stored. ■ ELD user account assigned by the motor 17. Add and reserve §§ 395.16 through (2) A motor carrier must retain a 395.19 in subpart A. carrier to a driver requires the following data elements: driver’s ELD records so as to protect a ■ 18. Amend part 395 by adding a new (i) A driver’s first and last name, as driver’s privacy in a manner consistent subpart B, consisting of §§ 395.20 reflected on the driver’s license; with sound business practices. through 395.38, and Appendix A to (ii) A unique ELD username selected (j) Record production. When Subpart B of Part 395, to read as follows: by the motor carrier; requested by an authorized safety Subpart B—Electronic Logging Devices (iii) The driver’s valid driver’s license official, a motor carrier must produce (ELDs) number; and ELD records in an electronic format Sec. (iv) The State or jurisdiction that either at the time of the request or, if the 395.20 ELD applicability and scope. issued the driver’s license. motor carrier has multiple offices or 395.22 Motor carrier responsibilities—In (2) The driver’s license number or terminals, within the time permitted general. Social Security number must not be under § 390.29 of this subchapter.

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§ 395.24 Driver responsibilities—In recording in the previous 1 hour, the (2) Driver’s responsibilities. A driver general. ELD automatically records an operating a commercial motor vehicle (a) In general. A driver must provide intermediate recording that includes the under one of the authorized categories the information the ELD requires as data elements in paragraphs (b)(1) listed in paragraph (a)(1) of this section: prompted by the ELD and required by through (8) of this section. (i) Must select on the ELD the the motor carrier. (2) If the intermediate recording is applicable special driving category (b) Driver’s duty status. A driver must created during a period when the driver before the start of the status and deselect input the driver’s duty status by indicates authorized personal use of a when the indicated status ends; and selecting among the following categories commercial motor vehicle, the data (ii) When prompted by the ELD, available on the ELD: elements in paragraphs (b)(4) and (5) of annotate the driver’s ELD record (1) ‘‘Off duty’’ or ‘‘OFF’’ or ‘‘1’’; this section (engine hours and vehicle describing the driver’s activity. (2) ‘‘Sleeper berth’’ or ‘‘SB’’ or ‘‘2’’, to miles) will be left blank and paragraph (b) Drivers exempt from ELD use. A be used only if sleeper berth is used; (b)(3) of this section (location) will be motor carrier may configure an ELD to (3) ‘‘Driving’’ or ‘‘D’’ or ‘‘3’’; or recorded with a single decimal point designate a driver as exempt from ELD (4) ‘‘On-duty not driving’’ or ‘‘ON’’ or resolution (approximately within a 10- use. ‘‘4’’. mile radius). (c) Other driving statuses. A driver (c) Miscellaneous data. (1) A driver (e) Change in special driving category. operating a commercial motor vehicle must manually input the following If a driver indicates a change in status under any exception under § 390.3(f) of information in the ELD: under § 395.28(a)(2), the ELD records this subchapter or § 395.1 who is not (i) Annotations, when applicable; the data elements in paragraphs (b)(1) covered under paragraph (a) or (b) of (ii) Driver’s location description, through (8) of this section. this section must annotate the driver’s when prompted by the ELD; and (f) Certification of the driver’s daily ELD record to explain the applicable (iii) Output file comment, when record. The ELD provides a function for exemption. directed by an authorized safety officer. recording the driver’s certification of the (2) A driver must manually input or driver’s records for every 24-hour § 395.30 ELD record submissions, edits, annotations, and data retention. verify the following information on the period. When a driver certifies or ELD: recertifies the driver’s records for a (a) Accurate record keeping. A driver (i) Commercial motor vehicle power given 24-hour period under and the motor carrier must ensure that unit number; § 395.30(b)(2), the ELD records the date, the driver’s ELD records are accurate. (ii) Trailer number(s), if applicable; time and driver identification data (b) Review of records and certification and elements in paragraphs (b)(1), (2), and by driver. (1) A driver must review the (iii) Shipping document number, if (6) of this section. driver’s ELD records, edit and correct applicable. (g) Log in/log out. When an authorized inaccurate records, enter any missing (d) Driver use of ELD. On request by user logs into or out of an ELD, the ELD information, and certify the accuracy of an authorized safety official, a driver records the data elements in paragraphs the information. must produce and transfer from an ELD (b)(1) and (2) and (b)(4) through (8) of (2) Using the certification function of the driver’s hours-of-service records in this section. the ELD, the driver must certify the accordance with the instruction sheet (h) Engine power up/shut down. driver’s records by affirmatively provided by the motor carrier. When a commercial motor vehicle’s selecting ‘‘Agree’’ immediately engine is powered up or powered down, following a statement that reads, ‘‘I § 395.26 ELD data automatically recorded. the ELD records the data elements in hereby certify that my data entries and (a) In general. An ELD provides the paragraphs (b)(1) through (8) of this my record of duty status for this 24-hour following functions and automatically section. period are true and correct.’’ The driver records the data elements listed in this (i) Authorized personal use. If the must certify the record immediately section in accordance with the record is created during a period when after the final required entry has been requirements contained in appendix A the driver has indicated authorized made or corrected for the 24-hour to subpart B of this part. personal use of a commercial motor period. (b) Data automatically recorded. The vehicle, the data element in paragraph (3) The driver must submit the ELD automatically records the following (b)(3) of this section is logged with a driver’s certified ELD records to the data elements: single decimal point resolution motor carrier in accordance with (1) Date; (approximately within a 10-mile radius). § 395.8(a)(2). (2) Time; (j) Malfunction and data diagnostic (4) If any edits are necessary after the (3) CMV geographic location event. When an ELD detects or clears a driver submits the records to the motor information; malfunction or data diagnostic event, carrier, the driver must recertify the (4) Engine hours; the ELD records the data elements in record after the edits are made. (5) Vehicle miles; paragraphs (b)(1) and (2) and (b)(4) (c) Edits, entries, and annotations. (1) (6) Driver or authenticated user through (8) of this section. Subject to the edit limitations of an ELD, identification data; a driver may edit, enter missing (7) Vehicle identification data; and § 395.28 Special driving categories; other information, and annotate ELD recorded (8) Motor carrier identification data. driving statuses. events. When edits, additions, or (c) Change of duty status. When a (a) Special driving categories—(1) annotations are necessary, a driver must driver indicates a change of duty status Motor carrier options. A motor carrier use the ELD and respond to the ELD’s under § 395.24(b), the ELD records the may configure an ELD to authorize a prompts. data elements in paragraphs (b)(1) driver to indicate that the driver is (2) The driver or support personnel through (8) of this section. operating a commercial motor vehicle must annotate each change or addition (d) Intermediate recording. (1) When under any of the following special to a record. a commercial motor vehicle is in motion driving categories: (3) In the case of team drivers, if there and there has not been a duty status (i) Authorized personal use; and were a mistake resulting in the wrong change or another intermediate (ii) Yard moves. driver being assigned driving-time hours

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by the ELD, and if the team drivers were official, a motor carrier must make (i) The name, address, and telephone both indicated in each other’s records available unidentified driving records number of the motor carrier for that period as co-drivers, driving from the ELD corresponding to the time representative who files the request; time may be edited and reassigned period for which ELD records are (ii) The make, model, and serial between the team drivers following the required. number of each ELD; procedure supported by the ELD. (iii) The date and location of each (d) Motor carrier-proposed edits. (1) § 395.34 ELD malfunctions and data ELD malfunction as reported by the On review of a driver’s submitted diagnostic events. driver to the carrier; and records, the motor carrier may request (a) Recordkeeping during ELD (iv) A concise statement describing edits to a driver’s records of duty status malfunctions. In case of an ELD actions taken by the motor carrier to to ensure accuracy. A driver must malfunction, a driver must do the make a good faith effort to repair, confirm or reject any proposed change, following: replace, or service the ELD units, implement the appropriate edits on the (1) Note the malfunction of the ELD including why the carrier needs driver’s record of duty status, and and provide written notice of the additional time beyond the 8 days recertify and resubmit the records in malfunction to the motor carrier within provided by this section. order for any motor carrier-proposed 24 hours; (3) If FMCSA determines that the changes to take effect. motor carrier is continuing to make a (2) Reconstruct the record of duty (2) A motor carrier may not request good faith effort to ensure repair, status for the current 24-hour period edits to the driver’s electronic records replacement, or service to address the and the previous 7 consecutive days, before the records have been submitted malfunction of each ELD, FMCSA may and record the records of duty status on by the driver. allow an additional period. graph-grid paper logs that comply with (3) Edits requested by any system or (4) FMCSA will provide written § 395.8, unless the driver already by any person other than the driver notice to the motor carrier of its possesses the records or the records are must require the driver’s electronic determination. The determination may retrievable from the ELD; and confirmation or rejection. include any conditions that FMCSA (e) Coercion prohibited. A motor (3) Continue to manually prepare a considers necessary to ensure hours-of- carrier may not coerce a driver to make record of duty status in accordance with service compliance. The determination a false certification of the driver’s data § 395.8 until the ELD is serviced and shall constitute a final agency action. entries or record of duty status. brought back into compliance with this (5) A motor carrier providing a (f) Motor carrier data retention subpart. request for extension that meets the requirements. A motor carrier must not (b) Inspections during malfunctions. requirements of paragraph (d)(2) of this alter or erase, or permit or require When a driver is inspected for hours of section is deemed in compliance with alteration or erasure of, the original service compliance during an ELD § 395.8(a)(1)(i) and (a)(2) until FMCSA information collected concerning the malfunction, the driver must provide makes an extension determination driver’s hours of service, the source data the authorized safety official the driver’s under this section, provided the motor streams used to provide that records of duty status manually kept as carrier and driver continue to comply information, or information contained specified under paragraphs (a)(2) and (3) with the other requirements of this in any ELD that uses the original of this section. section. information and HOS source data. (c) Driver requirements during ELD § 395.36 Driver access to records. § 395.32 Non-authenticated driver logs. data diagnostic events. If an ELD (a) Records on ELD. Drivers must be (a) Tracking non-authenticated indicates that there is a data able to access their own ELD records. A operation. The ELD must associate the inconsistency that generates a data motor carrier must not introduce a non-authenticated operation of a diagnostic event, the driver must follow process that would require a driver to go commercial motor vehicle with a single the motor carrier’s and ELD provider’s through the motor carrier to obtain account labeled ‘‘Unidentified Driver’’ recommendations in resolving the data as soon as the vehicle is in motion, if inconsistency. copies of the driver’s own ELD records if such records exist on or are no driver has logged into the ELD. (d) Motor carrier requirements for automatically retrievable through the (b) Driver. When a driver logs into an repair, replacement, or service. (1) If a ELD operated by the driver. ELD, the driver must review any motor carrier receives or discovers unassigned driving time when (b) Records in motor carrier’s information concerning the malfunction possession. On request, a motor carrier prompted by the ELD and must: of an ELD, the motor carrier must take (1) Assume any records that belong to must provide a driver with access to and actions to correct the malfunction of the copies of the driver’s own ELD records the driver under the driver’s account; or ELD within 8 days of discovery of the (2) Indicate that the records are not unavailable under paragraph (a) of this condition or a driver’s notification to section during the period a motor carrier attributable to the driver. the motor carrier, whichever occurs (c) Motor carrier. (1) A motor carrier is required to retain the records under first. must ensure that records of unidentified § 395.8(k). driving are reviewed and must: (2) A motor carrier seeking to extend (i) Annotate the record, explaining the period of time permitted for repair, § 395.38 Incorporation by reference. why the time is unassigned; or replacement, or service of one or more (a) Incorporation by reference. Certain (ii) Assign the record to the ELDs shall notify the FMCSA Division materials are incorporated by reference appropriate driver to correctly reflect Administrator for the State of the motor in part 395, with the approval of the the driver’s hours of service. carrier’s principal place of business Director of the Office of the Federal (2) A motor carrier must retain within 5 days after a driver notifies the Register under 5 U.S.C. 552(a), and 1 unidentified driving records for each motor carrier under paragraph (a)(1) of CFR part 51. To enforce any edition ELD for a minimum of 6 months from this section. Each request for an other than that specified in this section, the date of receipt. extension under this section must be the Federal Motor Carrier Safety (3) During a safety inspection, audit or signed by the motor carrier and must Administration must publish notice of investigation by an authorized safety contain: the change in the Federal Register, and

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the material must be available to the Solutions, LLC (AMS) 48377 Freemont (2) [Reserved] public. All approved material is Blvd., Suite 117, Freemont, CA 94538, (h) World Wide Web Consortium available for inspection at the Federal (510) 492–4080. (W3C). 32 Vassar Street, Building 32– Motor Carrier Safety Administration, (1) IETF RFC 3565, Use of the G514, Cambridge, MA 02139, http:// Office of Analysis, Research and Advanced Encryption Standard (AES) www.w3.org, (617) 253–2613. Technology, (800) 832–5660, and is Encryption Algorithm in Cryptographic (1) W3C Recommendation 27, SOAP available from the sources listed below. Message Syntax (CMS), approved July Version 1.2 Part 1: Messaging It is also available for inspection at the 2003, IBR in section 4.10.1.2, Appendix Framework (Second Edition), including National Archives and Records A to subpart B. errata, approved April 2007, IBR in Administration (NARA). For (2) IETF RFC 4056, Use of the section 4.10.1.1, Appendix A to subpart information on the availability of this RSASSA–PSS Signature Algorithm in B. material at NARA, call 202–741–6030 or Cryptographic Message Syntax (CMS), (2) [Reserved] go to http://www.archives.gov/ approved June 2005, IBR in section Appendix A to Subpart B of Part 395— federal_register/ 4.10.1.2, Appendix A to subpart B. Functional Specifications for All code_of_federal_regulations/ (3) IETF RFC 5246, The Transport Electronic Logging Devices (ELDs) ibr_locations.html. Layer Security (TLS) Protocol Version (b) American National Standards 1.2, approved August 2008, IBR in Table of Contents Institute (ANSI). 11 West 42nd Street, section 4.10.1.1, Appendix A to subpart 1. Scope and Description Scope New York, New York 10036, http:// B. 1.1. ELD Function webstore.ansi.org, (212) 642–4900. (4) IETF RFC 5321, Simple Mail 1.2. System Users (1) ANSI INCITS 4–1986 (R2012), Transfer Protocol, approved October 1.3. System Architecture 2008, IBR in section 4.10.1.2, Appendix 1.4. System Design American National Standard for 1.5. Sections of Appendix Information Systems—Coded Character A to subpart B. 2. Abbreviations Sets—7-Bit American National Standard (5) IETF RFC 5322, Internet Message 3. Definitions; Notations Code for Information Interchange (7-Bit Format, approved October 2008, IBR in 3.1. Definitions ASCII), approved June 14, 2007, IBR in section 4.10.1.2, Appendix A to subpart 3.1.1. Databus section 4.8.2.1, Appendix A to subpart B. 3.1.2. ELD Event B. (6) IETF RFC 5751, Secure/ 3.1.3. Exempt Driver (2) ANSI INCITS 446–2008 (R2013), Multipurpose Internet Mail Extensions 3.1.4. Geo-Location (S/MIME) Version 3.2, Message 3.1.5. Ignition Power Cycle, Ignition Power American National Standard for On Cycle, Ignition Power Off Cycle Information Technology—Identifying Specification, approved January 2010, 3.1.6. Unidentified Driver Attributes for Named Physical and IBR in section 4.10.1.2, Appendix A to 3.2. Notations Cultural Geographic Features (Except subpart B. 4. Functional Requirements Roads and Highways) of the United (7) IETF RFC 7230, Hypertext Transfer 4.1. ELD User Accounts States, Territories, Outlying Areas, and Protocol (HTTP/1.1): Message Syntax 4.1.1. Account Types Freely Associated Areas, and the Waters and Routing, approved June 2014, IBR 4.1.2. Account Creation in section 4.10.1.1, Appendix A to 4.1.3. Account Security of the Same to the Limit of the Twelve- 4.1.4. Account Management Mile Statutory Zone, approved October subpart B. (8) IETF RFC 7231, Hypertext Transfer 4.1.5. Non-Authenticated Operation 28, 2008, IBR in section 4.4.2, Appendix 4.2. ELD-Vehicle Interface A to subpart B. Protocol (HTTP/1.1): Semantics and 4.3. ELD Inputs (c) Bluetooth SIG, Inc. 5209 Lake Content, approved June 2014, IBR in 4.3.1. ELD Sensing Washington Blvd. NE., Suite 350, section 4.10.1.1, Appendix A to subpart 4.3.1.1. Engine Power Status Kirkland, WA 98033, https:// B. 4.3.1.2. Vehicle Motion Status www.bluetooth.org/Technical/ (f) National Institute of Standards and 4.3.1.3. Vehicle Miles 4.3.1.4. Engine Hours Specifications/adopted.htm, (425) 691– Technology (NIST). 100 Bureau Drive, Stop 1070, Gaithersburg, MD 20899– 4.3.1.5. Date and Time 3535. 4.3.1.6. CMV Position (1) Bluetooth SIG, Inc., Specification 1070, http://www.nist.gov, (301) 975– 4.3.1.7. CMV VIN of the Bluetooth System: Wireless 6478. 4.3.2. Driver’s Manual Entries Connections Made Easy, Covered Core (1) Federal Information Processing 4.3.2.1. Driver’s Entry of Required Event Package version 2.1 + EDR, volumes 0 Standards Publication (FIPS PUB) 197, Data Fields through 4, approved July 26, 2007, IBR Advanced Encryption Standard (AES), 4.3.2.2. Driver’s Status Inputs in sections 4.9.1, 4.9.2, 4.10.1.4, 4.10.2, approved November 26, 2001, IBR in 4.3.2.2.1. Driver’s Indication of Duty Status Appendix A to subpart B. sections 4.10.1.2 and 4.10.1.3, Appendix 4.3.2.2.2. Driver’s Indication of Situations (2) [Reserved] A to subpart B. Impacting Driving Time Recording 4.3.2.3. Driver’s Certification of Records (d) Institute of Electrical and (2) SP 800–32, Introduction to Public Key Technology and the Federal PKI 4.3.2.4. Driver’s Data Transfer Initiation Electronic Engineers (IEEE) Standards Input Association. 445 Hoes Lane, Piscataway, Infrastructure, approved February 26, 4.3.2.5. Driver’s Entry of an Output File NJ 08854–4141, http:// 2001, IBR in section 4.10.1.2, Appendix Comment standards.ieee.org/index.html, (732) A to subpart B. 4.3.2.6. Driver’s Annotation of Records 981–0060. (g) Universal Serial Bus Implementers 4.3.2.7. Driver’s Entry of Location (1) IEEE Std 1667–2009, IEEE Forum (USBIF). 3855 SW. 153rd Drive, Information Standard for Authentication in Host Beaverton, Oregon 97006, http:// 4.3.2.8. Driver’s Record Entry/Edit Attachments of Transient Storage www.usb.org, (503) 619–0426. 4.3.2.8.1 Mechanism for Driver Edits and Annotations Devices, approved 11 November 2009, (1) USB Implementers Forum, Inc., Universal Serial Bus Specification, 4.3.2.8.2 Driver Edit Limitations IBR in section 4.10.1.3, Appendix A to 4.3.3. Motor Carrier’s Manual Entries subpart B. Revision 2.0, approved April 27, 2000, 4.3.3.1. ELD Configuration (2) [Reserved] as revised through April 3, 2015, IBR in 4.3.3.1.1. Configuration of Available (e) Internet Engineering Task Force sections 4.9.1, 4.9.2, 4.10.1.3, and Categories Impacting Driving Time (IETF). C/o Association Management 4.10.2, Appendix A to subpart B. Recording

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4.3.3.1.2. Configuration of Using ELDs 4.6.1.8. Other Technology-Specific 7.5. CMV VIN 4.3.3.1.3. Motor Carrier’s Post-Review Operational Health Monitoring 7.6. Comment/Annotation Electronic Edit Request 4.6.2. ELD Malfunction Status Indicator 7.7. Data Diagnostic Event Indicator Status 4.4. ELD Processing and Calculations 4.6.2.1. Visual Malfunction Indicator 7.8. Date 4.4.1. Conditions for Automatic Setting of 4.6.3. ELD Data Diagnostic Status Indicator 7.9. Distance Since Last Valid Coordinates Duty Status 4.6.3.1. Visual Data Diagnostics Indicator 7.10. Driver’s License Issuing State 4.4.1.1. Automatic Setting of Duty Status to 4.7. Special Purpose ELD Functions 7.11. Driver’s License Number Driving 4.7.1. Driver’s ELD Volume Control 7.12. Driver’s Location Description 4.4.1.2. Automatic Setting of Duty Status to 4.7.2. Driver’s Access To Own ELD Records 7.13. ELD Account Type On-Duty Not Driving 4.7.3. Privacy Preserving Provision for Use 7.14. ELD Authentication Value 4.4.1.3. Other Automatic Duty-Status During Personal Uses of a CMV 7.15. ELD Identifier Setting Actions Prohibited 4.8. ELD Outputs 7.16. ELD Provider 4.4.2. Geo-Location Conversions 4.8.1. Printout or Display 7.17. ELD Registration ID 4.4.3. Date and Time Conversions 4.8.1.1. Print Paper Requirements 7.18. ELD Username 4.4.4. Setting of Event Parameters in 4.8.1.2. Display Requirements 7.19. Engine Hours Records, Edits, and Entries 4.8.1.3. Information To Be Shown on the 7.20. Event Code 4.4.4.1. Event Sequence Identifier (ID) Printout and Display at Roadside 7.21. Event Data Check Value Number 4.8.2. ELD Data File 7.22. Event Record Origin 4.4.4.2. Event Record Status, Event Record 4.8.2.1. ELD Output File Standard 7.23. Event Record Status Origin, Event Type Setting 4.8.2.1.1. Header Segment 7.24. Event Sequence ID Number 4.8.2.1.2. User List 4.4.4.2.1. Records Automatically Logged by 7.25. Event Type 4.8.2.1.3. CMV List ELD 7.26. Exempt Driver Configuration 4.8.2.1.4. ELD Event List for Driver’s 4.4.4.2.2. Driver Edits 7.27. File Data Check Value Record of Duty Status 4.4.4.2.3. Driver Entries 7.28. First Name 4.8.2.1.5. Event Annotations, Comments, 4.4.4.2.4. Driver’s Assumption of 7.29. Geo-Location and Driver’s Location Description Unidentified Driver Logs 7.30. Last Name 4.8.2.1.6. ELD Event List for Driver’s 4.4.4.2.5. Motor Carrier Edit Suggestions 7.31. Latitude Certification of Own Records 4.4.4.2.6. Driver’s Actions Over Motor 7.32. Line Data Check Value 4.8.2.1.7. Malfunction and Diagnostic Carrier Edit Suggestions 7.33. Longitude Event Records 4.4.5. Data Integrity Check Functions 7.34. Malfunction/Diagnostic Code 4.8.2.1.8. ELD Login/Logout Report 4.4.5.1. Event Data Check 7.35. Malfunction Indicator Status 4.8.2.1.9. CMV’s Engine Power-Up and 4.4.5.1.1. Event Checksum Calculation 7.36. Multiday Basis Used Shut Down Activity 4.4.5.1.2. Event Data Check Calculation 7.37. Order Number 4.8.2.1.10. ELD Event Log List for the 4.4.5.2. Line Data Check 7.38. Output File Comment Unidentified Driver Profile 4.4.5.2.1. Line Checksum Calculation 7.39. Shipping Document Number 4.8.2.1.11. File Data Check Value 4.4.5.2.2. Line Data Check Calculation 7.40. Time 4.8.2.2. ELD Output File Name Standard 4.4.5.2.3. Line Data Check Value Inclusion 7.41. Time Zone Offset from UTC 4.9. Data Transfer Capability Requirements in Output File 7.42. Trailer Number(s) 4.9.1. Data Transfer During Roadside Safety 4.4.5.3. File Data Check 7.43. Vehicle Miles 4.4.5.3.1. File Checksum Calculation Inspections 4.4.5.3.2. File Data Check Value 4.9.2. Motor Carrier Data Reporting 1. Scope and Description Calculation 4.10. Communications Standards for the (a) This appendix specifies the minimal 4.4.5.3.3. File Data Check Value Inclusion Transmittal of Data Files From ELDs requirements for an electronic logging device in Output File. 4.10.1. Data Transfer Mechanisms (ELD) necessary for an ELD provider to build 4.5. ELD Recording 4.10.1.1. Wireless Data Transfer via Web and certify that its technology is compliant 4.5.1. Events and Data To Record Services with this appendix. 4.5.1.1. Event: Change in Driver’s Duty 4.10.1.2. Wireless Data Transfer Through E- Status Mail 1.1. ELD Function 4.5.1.2. Event: Intermediate Logs 4.10.1.3. Data Transfer via USB 2.0 The ELD discussed in this appendix is an 4.5.1.3. Event: Change in Driver’s 4.10.1.4 Wireless Data Transfer via electronic module capable of recording the ® Indication of Allowed Conditions that Bluetooth electronic records of duty status for CMV Impact Driving Time Recording 4.10.2. Motor Carrier Data Transmission drivers using the unit in a driving 4.5.1.4. Event: Driver’s Certification of 5. ELD Registration and Certification environment within a CMV and meets the Own Records 5.1. ELD Provider’s Registration compliance requirements in this appendix. 4.5.1.5. Event: Driver’s Login/Logout 5.1.1. Registering Online Activity 5.1.2. Keeping Information Current 1.2. System Users 4.5.1.6. Event: CMV’s Engine Power Up 5.1.3. Authentication Information Users of ELDs are: and Shut Down Activity Distribution (a) CMV drivers employed by a motor 4.5.1.7. Event: ELD Malfunction and Data 5.2. Certification of Conformity With carrier; and Diagnostics Occurrence FMCSA Standards (b) Support personnel who have been 4.6. ELD’s Self-Monitoring of Required 5.2.1. Online Certification authorized by the motor carrier to: Functions 5.2.2. Procedure To Validate an ELD’s (1) Create, remove, and manage user 4.6.1. Compliance Self-Monitoring, Authenticity accounts; Malfunctions and Data Diagnostic Events 5.3. Publicly Available Information (2) Configure allowed ELD parameters; and 4.6.1.1. Power Compliance Monitoring 5.4. Removal of Listed Certification (3) Access, review, and manage drivers’ 4.6.1.2. Engine Synchronization 5.4.1. Removal Process ELD records on behalf of the motor carrier. Compliance Monitoring 5.4.2. Notice 4.6.1.3. Timing Compliance Monitoring 5.4.3. Response 1.3. System Architecture 4.6.1.4. Positioning Compliance 5.4.4. Agency Action An ELD may be implemented as a stand- Monitoring 5.4.5. Administrative Review alone technology or within another electronic 4.6.1.5. Data Recording Compliance 6. References module. It may be installed in a CMV or may Monitoring 7. Data Elements Dictionary be implemented on a handheld unit that may 4.6.1.6. Monitoring Records Logged under 7.1. 24-Hour Period Starting Time be moved from vehicle to vehicle. The the Unidentified Driver Profile 7.2. Carrier Name functional requirements are the same for all 4.6.1.7. Data Transfer Compliance 7.3. Carrier’s USDOT Number types of system architecture that may be used Monitoring 7.4. CMV Power Unit Number in implementing the ELD functionality.

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1.4. System Design (c) An ELD records a driver’s electronic (e) This appendix specifies minimally (a) An ELD is integrally synchronized with RODS and other supporting events with the required data elements that must be part of the engine of the CMV such that driving time required data elements specified in this an event record such that a standard ELD can be automatically recorded for the driver appendix and retains data to support the output file can be produced by all compliant operating the CMV and using the ELD. performance requirements specified in this ELDs. (b) An ELD allows for manual inputs from appendix. (f) Figure 1 provides a visual layout of how the driver and the motor carrier support (d) An ELD generates a standard data file this appendix is generally organized to personnel and automatically captures date output and transfers it to an authorized safety further explain the required sub-functions of and time, vehicle position, and vehicle official upon request. an ELD. operational parameters.

1.5. Sections of Appendix 4.3.2 and by the motor carrier as covered in able to detect. Section 4.7 introduces (a) Section 2 lists the abbreviations used section 4.3.3. The ELD requirements for technical functions that are intended to guard throughout this appendix. internal processing and tracking of a driver against harassment and introduces a information flow are described in section 4.4, (b) Section 3 provides definitions for terms privacy preserving provision when a driver which includes conditions for and and notations used in this document. operates a CMV for personal purposes. prohibitions against automatic setting of Section 4.8 explains ELD outputs, which are (c) Section 4 lists functional requirements duty-status in section 4.4.1, required geo- for an ELD. More specifically, section 4.1 location and date and time conversion the information displayed to a user and the describes the security requirements for functions in sections 4.4.2 and 4.4.3, standard data output file an ELD must account management within an ELD system respectively, use of event attributes for produce. Sections 4.9 and 4.10, respectively, and introduces the term ‘‘Unidentified tracking of edit and entry history in section describe the data reporting requirements and Driver’’ account. Section 4.2 explains 4.4.4, and the use of data check functions in the communications protocols. internal engine synchronization requirements the recording of ELD logs in section 4.4.5 as (d) Section 5 describes the ELD and its applicability when used in recording standard security measures for all ELDs. certification and registration process. a driver’s record of duty status in CMVs. Section 4.5 describes the events an ELD must (e) Section 6 lists the cited references Section 4.3 describes the inputs of an ELD record and the data elements each type of throughout this appendix. which includes automatically measured event must include. Section 4.6 introduces (f) Section 7 provides a data elements signals by the ELD as covered in section device self-monitoring requirements and 4.3.1, and manual entries by the standardizes the minimal set of malfunctions dictionary referencing each data element authenticated driver as covered in section and data diagnostic events an ELD must be identified in this appendix.

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2. Abbreviations 3.1.5. Ignition Power Cycle, Ignition Power (e) A support personnel account must not 3pDP Third-Party Developers’ Partnership On Cycle, Ignition Power Off Cycle allow recording of ELD data for its account ASCII American Standard Code for (a) An ignition power cycle refers to the holder. Information Interchange engine’s power status changing from ‘‘on to (f) An ELD must reserve a unique driver account for recording events during non- CAN Control Area Network off’’ or ‘‘off to on’’, typically with the driver authenticated operation of a CMV. This CMV Commercial Motor Vehicle controlling engine power status by switching ECM Electronic Control Module appendix will refer to this account as the the ignition key positions. ‘‘unidentified driver account.’’ ELD Electronic Logging Device (b) An ignition power on cycle refers to the FMCSA Federal Motor Carrier Safety engine power sequence changing from ‘‘off to 4.1.3. Account Security Administration on and then off’’. This refers to a continuous (a) An ELD must provide secure access to HOS Hours of Service period when a CMV’s engine is powered. data recorded and stored on the system by HTTP Hypertext Transfer Protocol (c) An ignition power off cycle refers to the requiring user authentication during system HTTPS Hypertext Transfer Protocol Secure engine power sequence changing from ‘‘on to login. ICD Interface Control Document off and then on’’. This refers to a continuous (b) Driver accounts must only have access SAFER Safety and Fitness Electronic period when a CMV’s engine is not powered. to data associated with that driver, protecting Records 3.1.6. Unidentified Driver the authenticity and confidentiality of the RFC Request for Comments collected information. RODS Records of Duty Status ‘‘Unidentified Driver’’ refers to the 4.1.4. Account Management TLS Transport Layer Security operation of a CMV featuring an ELD without UCT Coordinated Universal Time an authenticated driver logging in the system. (a) An ELD must be capable of separately USB Universal Serial Bus Functional specifications in this appendix recording and retaining ELD data for each WSDL Web Services Definition Language require an ELD to automatically capture individual driver using the ELD. XML Extensible Markup Language driving time under such conditions and (b) An ELD must provide for and require XOR Exclusive Or {bitwise binary attribute such records to the unique concurrent authentication for team drivers. operation} ‘‘Unidentified Driver account,’’ as specified (c) If more than one ELD unit is used to record a driver’s electronic records within a 3. Definitions; Notations in section 4.1.5 of this appendix, until the motor carrier and the driver review the motor carrier’s operation, the ELD in the 3.1. Definitions records and they are assigned to the true and vehicle the driver is operating most recently must be able to produce a complete ELD 3.1.1. Databus correct owner, as described in § 395.32 of this part. report for that driver, on demand, for the A vehicle databus refers to an internal current 24-hour period and the previous 7 communications network that interconnects 3.2. Notations consecutive days. components inside a vehicle and facilitates Throughout this appendix the following 4.1.5. Non-Authenticated Operation exchange of data between subsystems notations are used when data elements are (a) An ELD must associate all non- typically using serial or control area network referenced. protocols. authenticated operation of a CMV with a (a) < . > indicates a parameter an ELD must single ELD account labeled unidentified 3.1.2. ELD Event track. For example refers to the unique or identifier specified during the (b) If a driver does not log onto the ELD, in time when the ELD records data with the creation of an ELD account with the as soon as the vehicle is in motion, the ELD data elements specified in this appendix. The requirements set forth in section 7.18 of this must: discrete ELD events relate to the driver’s duty appendix. (1) Provide a visual or visual and audible status and ELD’s operational integrity. They (b) { .} indicates which of multiple values warning reminding the driver to stop and log are either triggered by input from the driver of a parameter is being referenced. For in to the ELD; (driver’s duty status changes, driver’s login/ example (2) Record accumulated driving and on- logout activity, etc.) or triggered by the ELD’s refers specifically to the ELD username for duty, not-driving, time in accordance with internal monitoring functions (ELD the co-driver. the ELD defaults described in section 4.4.1 of malfunction detection, data diagnostics (c) indicates a carriage return or new this appendix under the unidentified driver detection, intermediate logs, etc.). ELD events line or end of the current line. This notation profile; and and required data elements for each type of is used in section 4.8.2 of this appendix, (3) Not allow entry of any information into ELD event are described in detail in section which describes the standard ELD output the ELD other than a response to the login 4.5.1 of this appendix. file. prompt. 3.1.3. Exempt Driver 4. Functional Requirements 4.2. ELD-Vehicle Interface As specified in further detail in section 4.1. ELD User Accounts (a) An ELD must be integrally 4.3.3.1.2 of this appendix, an ELD must allow synchronized with the engine of the CMV. a motor carrier to configure an ELD for a 4.1.1. Account Types Engine synchronization for purposes of ELD driver who may be exempt from the use of An ELD must support a user account compliance means the monitoring of the the ELD. An example of an exempt driver structure that separates drivers and motor vehicle’s engine operation to automatically would be a driver operating under the short- carrier’s support personnel (i.e. non-drivers). capture the engine’s power status, vehicle’s motion status, miles driven value, and engine haul exemption in § 395.1(e) of this part (100 4.1.2. Account Creation air-mile radius driver and non-CDL 150-air hours value when the CMV’s engine is mile radius driver). Even though exempt (a) Each user of the ELD must have a valid powered. drivers do not have to use an ELD, in active account on the ELD with a unique (b) An ELD used while operating a CMV operations when an ELD equipped CMV may identifier assigned by the motor carrier. that is a model year 2000 or later model year, be shared between exempt and non-exempt (b) Each driver account must require the as indicated by the vehicle identification drivers, motor carriers can use this allowed entry of the driver’s license number and the number (VIN), that has an engine electronic configuration to avoid issues with State or jurisdiction that issued the driver’s control module (ECM) must establish a link unidentified driver data diagnostics errors. license into the ELD during the account to the engine ECM when the CMV’s engine creation process. The driver account must is powered and receive automatically the 3.1.4. Geo-Location securely store this information on the ELD. engine’s power status, vehicle’s motion Geo-location is the conversion of a position (c) An ELD must not allow creation of more status, miles driven value, and engine hours measurement in latitude/longitude than one driver account associated with a value through the serial or Control Area coordinates into a description of the distance driver’s license for a given motor carrier. Network communication protocols supported and direction to a recognizable nearby (d) A driver account must not have by the vehicle’s engine ECM. If the vehicle location name. Geo-location information is administrative rights to create new accounts does not have an ECM, an ELD may use used on an ELD’s display or printout. on the ELD. alternative sources to obtain or estimate these

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vehicle parameters with the listed accuracy vehicle miles indication must be obtained or tenths of a degree (i.e., a decimal point and requirements under section 4.3.1 of this estimated from a source that is accurate to single decimal place) as further specified in appendix. within ±10% of miles accumulated by the section 4.7.3 of this appendix. 4.3. ELD Inputs CMV over a 24-hour period as indicated on (g) An ELD must be able to acquire a valid the vehicle’s odometer display. position measurement at least once every 5 4.3.1. ELD Sensing 4.3.1.4. Engine Hours miles of driving; however, the ELD records CMV location information only during ELD 4.3.1.1. Engine Power Status (a) An ELD must monitor engine hours of events as specified in section 4.5.1 of this the CMV over the course of an ignition power An ELD must be powered and become fully appendix. functional within 1 minute of the vehicle’s on cycle (elapsed engine hours) and over the engine receiving power and must remain course of the total engine hours of the CMV’s 4.3.1.7. CMV VIN powered for as long as the vehicle’s engine operation. Engine hours must use or must be The vehicle identification number (VIN) stays powered. converted to hours in intervals of a tenth of for the power unit of a CMV must be an hour. 4.3.1.2. Vehicle Motion Status automatically obtained from the engine ECM (b) If an ELD is required to have a link to and recorded if it is available on the vehicle (a) An ELD must automatically determine the vehicle’s engine ECM, the ELD must databus. whether a CMV is in motion or stopped by monitor the engine ECM’s total engine hours comparing the vehicle speed information message broadcast and use it to log total 4.3.2. Driver’s Manual Entries with respect to a set speed threshold as engine hours information. Otherwise, engine (a) An ELD must prompt the driver to input follows: hours must be obtained or estimated from a information into the ELD only when the CMV (1) Once the vehicle speed exceeds the set source that monitors the ignition power of is stationary and driver’s duty status is not speed threshold, it must be considered in ± the CMV and must be accurate within 0.1 on-duty driving, except for the condition motion. hour of the engine’s total operation within a specified in section 4.4.1.2 of this appendix. (2) Once in motion, the vehicle must be given ignition power on cycle. considered in motion until its speed falls to (b) If the driver’s duty status is driving, an 4.3.1.5. Date and Time 0 miles per hour and stays at 0 miles per ELD must only allow the driver who is hour for 3 consecutive seconds. Then, the (a) The ELD must obtain and record the operating the CMV to change the driver’s vehicle will be considered stopped. date and time information automatically duty status to another duty status. (3) An ELD’s set speed threshold for without allowing any external input or (c) A stopped vehicle must maintain zero determination of the in-motion state for the interference from a motor carrier, driver, or (0) miles per hour speed to be considered purpose of this section must not be any other person. stationary for purposes of information entry configurable to greater than 5 miles per hour. (b) The ELD time must be synchronized to into an ELD. (b) If an ELD is required to have a link to Coordinated Universal Time (UCT) and the (d) An ELD must allow an authenticated the vehicle’s engine ECM, vehicle speed absolute deviation from UCT must not co-driver who is not driving, but who has information must be acquired from the exceed 10 minutes at any point in time. logged into the ELD prior to the vehicle being engine ECM. Otherwise, vehicle speed 4.3.1.6. CMV Position in motion, to make entries over his or her information must be acquired using an own records when the vehicle is in motion. (a) An ELD must determine automatically independent source apart from the The ELD must not allow co-drivers to switch the position of the CMV in standard latitude/ positioning services described under section driving roles when the vehicle is in motion. longitude coordinates with the accuracy and 4.3.1.6 of this appendix and must be accurate availability requirements of this section. 4.3.2.1. Driver’s Entry of Required Event Data within ±3 miles per hour of the CMV’s true (b) The ELD must obtain and record this Fields ground speed for purposes of determining the information without allowing any external in-motion state for the CMV. (a) An ELD must provide a means for a input or interference from a motor carrier, driver to enter information pertaining to the 4.3.1.3. Vehicle Miles driver, or any other person. driver’s ELD records manually, e.g., CMV (a) An ELD must monitor vehicle miles as (c) CMV position measurement must be ± power unit number, as specified in section accumulated by a CMV over the course of an accurate to 0.5 mile of absolute position of 7.4 of this appendix; trailer number(s), as ignition power on cycle (accumulated vehicle the CMV when an ELD measures a valid specified in section 7.42; and shipping latitude/longitude coordinate value. miles) and over the course of CMV’s document number, as specified in section (d) Position information must be obtained operation (total vehicle miles). Vehicle miles 7.39. in or converted to standard signed latitude information must use or must be converted (b) If the motor carrier populates these and longitude values and must be expressed to units of whole miles. fields automatically, the ELD must provide (b) If the ELD is required to have a link to as decimal degrees to hundreds of a degree means for the driver to review such the vehicle’s engine ECM as specified in precision (i.e., a decimal point and two information and make corrections as section 4.2 of this appendix: decimal places). necessary. (1) The ELD must monitor the engine (e) Measurement accuracy combined with ECM’s odometer message broadcast and use the reporting precision requirement implies 4.3.2.2. Driver’s Status Inputs it to log total vehicle miles information; and that position reporting accuracy will be on 4.3.2.2.1. Driver’s Indication of Duty Status (2) The ELD must use the odometer the order of ±1mile of absolute position of the message to determine accumulated vehicle CMV during the course of a CMV’s (a) An ELD must provide a means for the miles since engine’s last power on instance. commercial operation. authenticated driver to select a driver’s duty (c) If the ELD is not required to have a link (f) During periods of a driver’s indication status. to the vehicle’s engine ECM as specified in of personal use of the CMV, the measurement (b) The ELD must use the ELD duty status section 4.2 of this appendix, the accumulated reporting precision requirement is reduced to categories listed in Table 1 of this appendix.

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4.3.2.2.2. Driver’s Indication of Situations a period when the driver may use the CMV Table 2 of this appendix. This list must be Impacting Driving Time Recording for authorized personal use or for performing supported independent of the duty status (a) An ELD must provide the means for a yard moves. The ELD must acquire this status categories described in section 4.3.2.2.1 of driver to indicate the beginning and end of in a standard format from the category list in this appendix.

(b) An ELD must allow a driver to select (b) An ELD must only allow the 4.3.2.5. Driver’s Entry of an Output File only categories that a motor carrier enables authenticated driver to certify records Comment by configuration for that driver, as described associated with that driver. An ELD must accommodate the entry of an in section 4.3.3.1.1 of this appendix. (c) If any edits are necessary after the output file comment up to 60 characters long. (c) An ELD must only allow one category driver certifies the records for a given 24- If an authorized safety official provides a key to be selected at any given time and use the hour period, the ELD must require and phrase or code during an inspection to be latest selection by the driver. prompt the driver to re-certify the updated included in the output file comment, it must (d) The ELD must prompt the driver to records. be entered and embedded in the electronic ELD records in the exchanged dataset as enter an annotation upon selection of a (d) If there are any past records on the ELD category from Table 2 of this appendix and specified in section 4.8.2.1.1 of this (excluding the current 24-hour period) that appendix. The default value for the output record the driver’s entry. require certification or re-certification by the (e) A driver’s indication of special driving file comment must be blank. This output file driver, the ELD must indicate the required comment must be used only for the creation situation must reset to none if the ELD or driver action on the ELD’s display and of the related data files for the intended time, CMV’s engine goes through a power off cycle prompt the driver to take the necessary place, and ELD user. (ELD or CMV’s engine turns off and then on) action during the login and logout processes. except if the driver has indicated authorized 4.3.2.6. Driver’s Annotation of Records personal use of CMV. If the driver has 4.3.2.4. Driver’s Data Transfer Initiation Input (a) An ELD must allow a driver to add indicated authorized personal use of the (a) An ELD must provide a standardized annotations in text format to recorded, CMV, the ELD must require confirmation of single-step driver interface for compilation of entered, or edited ELD events. continuation of the authorized personal use driver’s ELD records and initiation of the (b) The ELD must require annotations to be 4 characters or longer, including embedded of CMV condition by the driver. If not data transfer to authorized safety officials confirmed by the driver and the vehicle is in spaces if driver annotation is required and when requested during a roadside inspection. driver is prompted by the ELD. motion, the ELD must default to none. (b) The ELD must input the data transfer 4.3.2.7. Driver’s Entry of Location 4.3.2.3. Driver’s Certification of Records request from the driver, require confirmation, Information (a) An ELD must include a function present and request selection of the supported data transfer options by the ELD, (a) An ELD must allow manual entry of a whereby a driver can certify the driver’s CMV’s location by the driver in text format records at the end of a 24-hour period. and prompt for entry of the output file comment as specified in section 4.3.2.5 of in support of the driver edit requirements (1) This function, when selected, must described in section 4.3.2.8 of this appendix. this appendix. Upon confirmation, the ELD display a statement that reads ‘‘I hereby (b) The driver’s manual location entry must must generate the compliant output file and certify that my data entries and my record of be available as an option to a driver only duty status for this 24-hour period are true perform the data transfer. when prompted by the ELD under allowed and correct.’’ (c) The supported single-step data transfer conditions as described in section 4.6.1.4 of (2) An ELD must prompt the driver to initiation mechanism (such as a switch or an this appendix. select ‘‘Agree’’ or ‘‘Not ready.’’ An ELD must icon on a touch-screen display) must be (c) A manual location entry must show record the driver’s affirmative selection of clearly marked and visible to the driver when ‘‘M’’ in the latitude/longitude coordinates ‘‘Agree’’ as an event. the vehicle is stopped. fields in ELD records.

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4.3.2.8. Driver’s Record Entry/Edit requirements of this rule for each duty status must remain off-duty until (a) An ELD must provide a mechanism for configuration setting of the ELD. driver’s indication of the driving condition a driver to review, edit, and annotate the 4.3.3.1.1. Configuration of Available ends; or driver’s ELD records when a notation of Categories Impacting Driving Time Recording (b) Sets the duty status to on-duty not errors or omissions is necessary or enter the driving and indicates yard moves, in which (a) An ELD must allow a motor carrier to case duty status must remain on-duty not driver’s missing ELD records subject to the unilaterally configure the availability of each requirements specified in this section. driving until driver’s indication of the of the three categories listed on Table 2 of driving condition ends. (b) An ELD must not permit alteration or this appendix that the motor carrier chooses erasure of the original information collected to authorize for each of its drivers. By 4.4.1.2. Automatic Setting of Duty Status to concerning the driver’s ELD records or default, none of these categories must be On-Duty Not Driving alteration of the source data streams used to available to a new driver account without the When the duty status is set to driving, and provide that information. motor carrier proactively configuring their the CMV has not been in-motion for 5 4.3.2.8.1. Mechanism for Driver Edits and availability. consecutive minutes, the ELD must prompt Annotations (b) A motor carrier may change the the driver to confirm continued driving configuration for the availability of each (a) If a driver edits or annotates an ELD status or enter the proper duty status. If the category for each of its drivers. Changes to record or enters missing information, the act driver does not respond to the ELD prompt the configuration setting must be recorded on must not overwrite the original record. within 1-minute after receiving the prompt, the ELD and communicated to the applicable (b) The ELD must use the process outlined the ELD must automatically switch the duty authenticated driver during the ELD login in section 4.4.4.2 of this appendix to status to on-duty not driving. The time process. configure required event attributes to track thresholds for purposes of this section must the edit history of records. 4.3.3.1.2. Configuration of Using ELDs not be configurable. (c) Driver edits must be accompanied by an (a) An ELD must provide the motor carrier 4.4.1.3. Other Automatic Duty-Status Setting annotation. The ELD must prompt the driver the ability to configure a driver account Actions Prohibited to annotate edits. exempt from use of an ELD. An ELD must not feature any other 4.3.2.8.2. Driver Edit Limitations (b) The ELD must default the setting of this automatic records of duty setting mechanism configuration option for each new driver than those described in sections 4.4.1.1 and (a) An ELD must not allow or require the account created on an ELD to ‘‘no editing or manual entry of records with the 4.4.1.2 of this appendix. Duty status changes exemption.’’ that are not initiated by the driver, including following event types, as described in section (c) An exemption must be proactively 7.25 of this appendix: duty status alteration recommendations by configured for an applicable driver account motor carrier support personnel or a software by the motor carrier. The ELD must prompt algorithm, are subject to motor carrier edit Event Description the motor carrier to annotate the record and requirements in section 4.3.3.1.3. type provide an explanation for the configuration of exemption. 4.4.2. Geo-Location Conversions 2 ...... An intermediate log, (d) If a motor carrier configures a driver (a) For each change in duty status, the ELD 5 ...... A driver’s login/logout activity, account as exempt must convert automatically captured vehicle 6 ...... CMV’s engine power up/shut (1) The ELD must present the configured position in latitude/longitude coordinates down, or indication that is in effect for that driver into geo-location information, indicating 7 ...... ELD malfunctions and data diag- during the ELD login and logout processes. approximate distance and direction to an nostic events. (2) The ELD must continue to record ELD identifiable location corresponding to the driving time but suspend detection of name of a nearby city, town, or village, with (b) An ELD must not allow automatically missing data elements data diagnostic event a State abbreviation. recorded driving time to be shortened or the for the driver described in section 4.6.1.5 of (b) Geo-location information must be ELD username associated with an ELD record this appendix and data transfer compliance derived from a database that contains all to be edited or reassigned, except under the monitoring function described in section cities, towns, and villages with a population following circumstances: 4.6.1.7 when such driver is authenticated on of 5,000 or greater and listed in ANSI INCITS (1) Assignment of Unidentified Driver the ELD. 446–2008 (R2013) (incorporated by reference, records. ELD events recorded under the 4.3.3.1.3 Motor Carrier’s Post-Review see § 395.38). ‘‘Unidentified Driver’’ profile may be edited Electronic Edit Requests (c) An ELD’s viewable outputs (such as and assigned to the driver associated with the printouts or display) must feature geo- record; and (a) An ELD may allow the motor carrier location information as place names in text (2) Correction of errors with team drivers. (via a monitoring algorithm or support format. personnel) to screen, review, and request In the case of team drivers, the driver account 4.4.3. Date and Time Conversions associated with the driving time records may corrective edits to the driver’s certified (as be edited and reassigned between the team described in section 4.3.2.3 of this appendix) (a) An ELD must have the capability to drivers if there was a mistake resulting in a and submitted records through the ELD convert and track date and time captured in mismatch between the actual driver and the system electronically. If this function is UTC standard to the time standard in effect driver recorded by the ELD and if both team implemented by the ELD, the ELD must also at driver’s home terminal, taking the daylight drivers were respectively indicated in each support functions for the driver to see and savings time changes into account by using other’s records as a co-driver. The ELD must review the requested edits. the parameter ‘‘Time Zone Offset from UTC’’ require each co-driver to confirm the change (b) Edits requested by anyone or any as specified in section 7.41 of this appendix. for the corrective action to take effect. system other than the driver must require the (b) An ELD must record the driver’s record driver’s electronic confirmation or rejection. of duty status using the time standard in 4.3.3. Motor Carrier’s Manual Entries effect at the driver’s home terminal for a 24- An ELD must restrict availability of motor 4.4. ELD Processing and Calculations hour period beginning with the time carrier entries outlined in this section only to 4.4.1. Conditions for Automatic Setting of specified by the motor carrier for that driver’s authenticated ‘‘support personnel’’ account Duty Status home terminal. holders. 4.4.1.1. Automatic Setting of Duty Status to (c) The data element ‘‘Time Zone Offset 4.3.3.1. ELD Configuration Driving from UTC’’ must be included in the ‘‘Driver’s Certification of Own Records’’ events as If an ELD or a technology that includes an An ELD must automatically record driving specified in section 4.5.1.4 of this appendix. ELD function offers configuration options to time when the vehicle is in motion by setting the motor carrier or the driver that are not duty status to driving for the driver unless, 4.4.4. Setting of Event Parameters in Records, otherwise addressed or prohibited in this before the vehicle is in motion, the driver: Edits, and Entries appendix, the configuration options must not (a) Sets the duty status to off-duty and This section describes the security affect the ELD’s compliance with the indicates personal use of CMV, in which case measures for configuring and tracking event

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attributes for ELD records, edits, and entries (b) Set the ‘‘event record status’’ of the ELD identified in paragraph 4.4.4.2.5 (b) of this in a standardized manner. record(s) constructed in paragraph appendix to ‘‘4’’ (inactive–change rejected). 4.4.4.1. Event Sequence Identifier (ID) 4.4.4.2.3(a) of this appendix to ‘‘1’’ (active); 4.4.5. Data Integrity Check Functions Number and (c) Set the ‘‘event record origin’’ of the ELD (a) An ELD must support standard security (a) Each ELD event must feature an event record(s) constructed in paragraph measures that require the calculation and sequence ID number. 4.4.4.2.3(a) of this appendix to ‘‘2’’ (edited or recording of standard data check values for (1) The event sequence ID number for each entered by the driver). each ELD event recorded, for each line of the ELD event must use continuous numbering output file, and for the entire data file to be 4.4.4.2.4. Driver’s Assumption of across all users of that ELD and across engine generated for transmission to an authorized Unidentified Driver Logs and ELD power on and off cycles. safety official or the motor carrier. (2) An ELD must use the next available When a driver reviews and assumes ELD (b) For purposes of implementing data event sequence ID number (incremented by record(s) logged under the unidentified check calculations, the alphanumeric-to- one) each time a new event log is recorded. driver profile, the ELD must: numeric mapping provided in Table 3 of this (3) The event sequence ID number must (a) Identify the ELD record(s) logged under appendix must be used. track at least the last 65,536 unique events the unidentified driver profile that will be (c) Each ELD event record type specified in recorded on the ELD. reassigned to the driver; sections 4.5.1.1 and 4.5.1.3 of this appendix (b) The continuous event sequence ID (b) Use elements of the unidentified driver must include an event data check value, numbering structure used by the ELD must log(s) from paragraph 4.4.4.2.4(a) of this which must be calculated as specified in be mapped into a continuous hexadecimal appendix and acquire driver input to section 4.4.5.1. An event data check value number between 0000 (Decimal 0) and FFFF populate missing elements of the log must be calculated at the time of the (Decimal 65535). originally recorded under the unidentified following instances and must accompany 4.4.4.2. Event Record Status, Event Record driver profile, and construct the new event that event record thereafter: Origin, Event Type Setting record(s) for the driver; (1) When an event record is automatically (a) An ELD must retain the original records (c) Set the event record status of the ELD created by the ELD; even when allowed edits and entries are record(s) identified in paragraph 4.4.4.2.4(a) (2) When an authorized edit is performed made over a driver’s ELD records. of this appendix, which is being modified, to by the driver on the ELD; (b) An ELD must keep track of all event ‘‘2’’ (inactive–changed); (3) When an electronic edit proposal is record history, and the process used by the (d) Set the event record status of the ELD created by the motor carrier through the ELD ELD must produce the event record status, record(s) constructed in paragraph system. event record origin, and event type for the 4.4.4.2.4(b) of this appendix to ‘‘1’’ (active); (d) Each line of the ELD output file must ELD records in the standard categories and include a line data check value, which must specified in sections 7.23, 7.22, and 7.25 of (e) Set the event record origin of the ELD be calculated as specified in section 4.4.5.2 this appendix, respectively for each record as record(s) constructed in paragraph of this appendix. a standard security measure. For example, an 4.4.4.2.4(b) of this appendix to ‘‘4’’ (assumed (e) Each ELD report must also include a file ELD may use the process outlined in sections from unidentified driver profile). data check value, which must be calculated 4.4.4.2.1–4.4.4.2.6 to meet the requirements 4.4.4.2.5. Motor Carrier Edit Suggestions as specified in section 4.4.5.3 of this of this section. If a motor carrier requests an edit on a appendix. 4.4.4.2.1. Records Automatically Logged by driver’s records electronically, the ELD must: 4.4.5.1. Event Data Check ELD (a) Identify the ELD record(s) the motor The event data check value must be At the instance an ELD creates a record carrier requests to be modified for which the calculated as follows. automatically, the ELD must: ‘‘event record status’’ is currently set to ‘‘1’’ (a) Set the ‘‘Event Record Status’’ to ‘‘1’’ (active); 4.4.5.1.1. Event Checksum Calculation (active); and (b) Acquire motor carrier input for the (a) A checksum calculation includes the (b) Set the ‘‘Event Record Origin’’ to ‘‘1’’ intended edit and construct the ELD record(s) summation of numeric values or mappings of (automatically recorded by ELD). that will replace the record identified in a specified group of alphanumeric data 4.4.4.2.2. Driver Edits paragraph 4.4.4.2.5(a) of this appendix—if elements. The ELD must calculate an event approved by the driver; checksum value associated with each ELD At the instance of a driver editing existing (c) Set the event record status of the ELD event at the instance of the event record record(s), the ELD must: record(s) in paragraph 4.4.4.2.5(b) of this being created. (a) Identify the ELD record(s) being appendix to ‘‘3’’ (inactive–change requested); (b) The event record elements that must be modified for which the ‘‘Event Record and included in the checksum calculation are the Status’’ is currently set to ‘‘1’’ (active); (d) Set the event record origin of the ELD following: (b) Acquire driver input for the intended record constructed in paragraph 4.4.4.2.5(b) (1) , edit and construct the ELD record(s) that will of this appendix to ‘‘3’’ (edit requested by an (2) , replace the record(s) identified in paragraph 4.4.4.2.2(a) of this appendix; authenticated user other than the driver). (3) , (c) Set the ‘‘Event Record Status’’ of the 4.4.4.2.6. Driver’s Actions Over Motor Carrier (4) , ELD record(s) identified in paragraph Edit Suggestions (5) , (6) , 4.4.4.2.2(a) of this appendix, which is being (a) If edits are requested by the motor modified, to ‘‘2’’ (inactive-changed); (7) , carrier, the ELD must allow the driver to (8) , (d) Set the ‘‘Event Record Status’’ of the review the requested edits and indicate on ELD record(s) constructed in paragraph (9) , and the ELD whether the driver confirms or (10) . 4.4.4.2.2(b) of this appendix to ‘‘1’’ (active); rejects the requested edit(s). and (c) The ELD must sum the numeric values (b) If the driver approves the motor of all individual characters making up the (e) Set the ‘‘Event Record Origin’’ of the carrier’s edit suggestion the ELD must: ELD record(s) constructed in paragraph listed data elements using the character to (1) Set the event record status of the ELD 4.4.4.2.2(b) of this appendix to ‘‘2’’ (edited or decimal value coding specified in Table 3 of record(s) identified under paragraph 4.4.4.2.5 entered by the driver). this appendix, and use the 8-bit lower byte (a) of this appendix being modified, to ‘‘2’’ of the hexadecimal representation of the 4.4.4.2.3. Driver Entries (inactive–changed); and summed total as the event checksum value When a driver enters missing record(s), the (2) Set the ‘‘event record status’’ of the ELD for that event. ELD must: record(s) constructed in paragraph 4.4.4.2.5 (a) Acquire driver input for the missing (b) of this appendix to ‘‘1’’ (active). 4.4.5.1.2. Event Data Check Calculation entries being implemented and construct the (c) If the driver disapproves the motor The event data check value must be the new ELD record(s) that will represent the carrier’s edit(s) suggestion, the ELD must set hexadecimal representation of the output 8- driver entries; the ‘‘event record status’’ of the ELD record(s) bit byte, after the below bitwise operations

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are performed on the binary representation of value of the hexadecimal representation of (b) The file data check value calculation the event checksum value, as set forth below: the summed total as the line checksum value must include all individual line data check (a) Three consecutive circular shift left for that line of output. values contained in that file. (rotate no carry -left) operations; and 4.4.5.2.2. Line Data Check Calculation (c) The ELD must sum all individual line (b) A bitwise exclusive OR (XOR) operation The line data check value must be data check values contained in a data file with the hexadecimal value C3 (decimal 195; output created, and use the lower two 8-bit binary 11000011). calculated by performing the following operations on the binary representation of the byte values of the hexadecimal 4.4.5.2. Line Data Check line checksum value as follows: representation of the summed total as the A line data check value must be calculated (a) Three consecutive circular shift left ‘‘file checksum’’ value. at the time of the generation of the ELD (rotate no carry -left) operations on the line 4.4.5.3.2. File Data Check Value Calculation checksum value; and output file, to transfer data to authorized (a) The file data check value must be (b) A bitwise XOR operation with the safety officials or to catalogue drivers’ ELD calculated by performing the following records at a motor carrier’s facility. A line hexadecimal value 96 (decimal 150; binary operations on the binary representation of the data check value must be calculated as 10010110). file checksum value: follows. 4.4.5.2.3. Line Data Check Value Inclusion in (1) Three consecutive circular shift left (aka 4.4.5.2.1. Line Checksum Calculation Output File rotate no carry -left) operations on each 8-bit (a) The ELD must calculate a line The calculated line data check value must bytes of the value; and checksum value associated with each line of be appended as the last line item of each of (2) A bitwise XOR operation with the ELD output file at the instance when an ELD the individual line items of the ELD output hexadecimal value 969C (decimal 38556; output file is generated. file as specified in the output file format in binary 1001011010011100). (b) The data elements that must be section 4.8.2.1 of this appendix. (b) The file data check value must be the included in the line checksum calculation 4.4.5.3. File Data Check 16-bit output obtained from the above vary as per the output data file specified in A file data check value must also be process. section 4.8.2.1 of this appendix. calculated at the time of the creation of an 4.4.5.3.3. File Data Check Value Inclusion in (c) The ELD must convert each character ELD output file. A file data check value must Output File featured in a line of output using the be calculated as follows. character to decimal value coding specified The calculated 16-bit file data check value on Table 3 of this appendix and sum the 4.4.5.3.1. File Checksum Calculation must be converted to hexadecimal 8-bit bytes converted numeric values of each character (a) The ELD must calculate a single 16-bit and must be appended as the last line item listed on a given ELD output line item file checksum value associated with an ELD of the ELD output file as specified in the (excluding the line data check value being output file at the instance when an ELD output file format in section 4.8.2.1.11 of this calculated), and use the 8-bit lower byte output file is generated. appendix.

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4.5. ELD Recording 4.5.1.3. Event: Change in Driver’s Indication if the CMV has not moved since the last 4.5.1. Events and Data To Record of Allowed Conditions That Impact Driving ignition power on cycle. Time Recording (b) The ELD must associate the record with An ELD must record data at the following (a) At each instance when the status of a the driver or the unidentified driver profile, discrete events: driver’s indication of personal use of CMV or the vehicle, the motor carrier, and the 4.5.1.1. Event: Change in Driver’s Duty Status yard moves changes, the ELD must record a shipping document number, and must include the following data elements: When a driver’s duty status changes, the new event. (b) The ELD must associate the record with (1) as ELD must associate the record with the the driver, the vehicle, the motor carrier, and described in section 7.24 of this appendix; driver, the record originator—if created the shipping document number, and must (2) as described in section during an edit or entry—the vehicle, the include the same data elements outlined in 7.25; motor carrier, and the shipping document section 4.5.1.1 of this appendix. (3) as described in section number and must include the following data 4.5.1.4. Event: Driver’s Certification of Own 7.20; elements: Records (4) <{Event} Date> as described in section (a) as 7.8; (a) At each instance when a driver certifies described in section 7.24 of this appendix; { } or re-certifies that the driver’s records for a (5) < Event Time> as described in section (b) as described in 7.40; given 24-hour period are true and correct, the { } section 7.23; ELD must record the event. (6) < Total Vehicle Miles> as described in (c) Origin as described in (b) The ELD must associate the record with section 7.43; { } section 7.22; the driver, the vehicle, the motor carrier, and (7) < Total Engine Hours> as described in (d) as described in section the shipping document number and must section 7.19; 7.25; include the following data elements: (8) <{Event} Latitude> as described in (e) as section 7.31; { } 7.20; described in section 7.24 of this appendix; (9) < Event Longitude> as described in (f) <{Event} Date> as described in section (2) as described in section section 7.33; and 7.8; 7.25; (10) as described in section (3) as described in section Coordinates> as described in section 7.9. 7.20; 7.40; 4.5.1.7. Event: ELD Malfunction and Data (4) as (h) <{Accumulated} Vehicle Miles> as Diagnostics Occurrence described in section 7.41. described in section 7.43; (5) <{Event} Date> and Engine Hours as described certified record}> as described in section 7.8; malfunction or data diagnostic event is in section 7.19; and detected or cleared by the ELD, the ELD must (j) <{Event}> Latitude as described in (6) <{Event} Time> as described in section record the event. section 7.31; 7.40. (b) The ELD must associate the record with { } the driver, the vehicle, the motor carrier, and (k) < Event > Longitude as described in 4.5.1.5. Event: Driver’s Login/Logout Activity section 7.33; the shipping document number, and must (l) (a) At each instance when an authorized include the following data elements: user logs in and out of the ELD, the ELD must as described in section 7.9; (1) as record the event. (m) as described in section 7.35; (2) as described in section the driver, the vehicle, the motor carrier, and 7.25; (n) as described in section 7.7; (3) as described in section include the following data elements: 7.20; (o) <{Event}> Comment/Annotation as (1) as (4) as described in section 7.6; described in section 7.24 of this appendix; described in section 7.34; (p) as (2) as described in section (5) <{Event} Date> as described in section described in section 7.12; and 7.25; 7.8; (3) as described in section (q) as described (6) <{Event} Time> as described in section 7.20; in section 7.21. 7.40; (4) <{Event} Date> as described in section (7) <{Total} Vehicle Miles> as described in 4.5.1.2. Event: Intermediate Logs 7.8; section 7.43; and (a) When a CMV is in motion, as described (5) <{Event} Time> as described in section (8) <{Total} Engine Hours> as described in in section 4.3.1.2 of this appendix, and there 7.40; section 7.19. has not been a duty status change event or (6) <{Total} Vehicle Miles> as described in another intermediate log event recorded in section 7.43; and 4.6. ELD’s Self-Monitoring of Required { } the previous 1-hour period, the ELD must (7) < Total Engine Hours> as described in Functions section 7.19. record a new intermediate log event. An ELD must have the capability to (b) The ELD must associate the record to 4.5.1.6. Event: CMV’s Engine Power Up and monitor its compliance with the technical the driver, the vehicle, the motor carrier, and Shut Down Activity requirements of this section for the detectable the shipping document number, and must (a) When a CMV’s engine is powered up or malfunctions and data inconsistencies listed include the same data elements outlined in shut down, an ELD must record the event in Table 4 of this appendix and must keep section 4.5.1.1 of this appendix except for within 1 minute of occurrence and retain the records of its malfunction and data item (p) in section 4.5.1.1. earliest shut down and latest power-up event diagnostic event detection.

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4.6.1. Compliance Self-Monitoring, parameters described under section 4.3.1 of of the CMV’s movement. When such elapsed Malfunctions and Data Diagnostic Events this appendix and must record an engine- time exceeds a cumulative 60 minutes over synchronization data diagnostics event when a 24 hour period, the ELD must set and 4.6.1.1. Power Compliance Monitoring it no longer can acquire updated values for record a positioning compliance malfunction. (a) An ELD must monitor data it receives the ELD parameters required for records (d) If a new ELD event must be recorded from the engine ECM or alternative sources within 5 seconds of the need. at an instance when the ELD had failed to as allowed in sections 4.3.1.1–4.3.1.4 of this (c) An ELD must set an engine acquire a valid position measurement within appendix, its onboard sensors, and data synchronization compliance malfunction if the most recent elapsed 5 miles of driving, record history to identify instances when it connectivity to any of the required data but the ELD has not yet set a positioning sources specified in section 4.3.1 of this may not have complied with the power compliance malfunction, the ELD must requirements specified in section 4.3.1.1, in appendix is lost for more than 30 minutes during a 24-hour period aggregated across all record the character ‘‘X’’ in both the latitude which case, the ELD must record a power and longitude fields, unless location is data diagnostics event for the corresponding driver profiles, including the unidentified driver profile. entered manually by the driver, in which driver(s), or under the unidentified driver case it must log the character ‘‘M’’ instead. profile if no drivers were authenticated at the 4.6.1.3. Timing Compliance Monitoring Under the circumstances listed in this time of detection. The ELD must periodically cross-check its paragraph, if the ELD event is due to a (b) An ELD must set a power compliance compliance with the requirement specified in change in duty status for the driver, the ELD malfunction if the power data diagnostics section 4.3.1.5 of this appendix with respect must prompt the driver to enter location event described in paragraph 4.6.1.1(a) of this to an accurate external UTC source and must appendix indicates an aggregated in-motion manually in accordance with section 4.3.2.7 record a timing compliance malfunction of this appendix. If the driver does not enter driving time understatement of 30 minutes or when it can no longer meet the underlying the location information and the vehicle is in more on the ELD over a 24-hour period compliance requirement. across all driver profiles, including the motion, the ELD must record a missing 4.6.1.4. Positioning Compliance Monitoring unidentified driver profile. required data element data diagnostic event (a) An ELD must continually monitor the for the driver. 4.6.1.2. Engine Synchronization Compliance availability of valid position measurements (e) If a new ELD event must be recorded Monitoring meeting the listed accuracy requirements in at an instance when the ELD has set a (a) An ELD must monitor the data it section 4.3.1.6 of this appendix and must positioning compliance malfunction, the ELD receives from the engine ECM or alternative track the distance and elapsed time from the must record the character ‘‘E’’ in both the sources as allowed in sections 4.3.1.1–4.3.1.4 last valid measurement point. latitude and longitude fields regardless of of this appendix, its onboard sensors, and (b) ELD records requiring location whether the driver is prompted and manually data record history to identify instances and information must use the last valid position enters location information. durations of its non-compliance with the ELD measurement and include the latitude/ 4.6.1.5. Data Recording Compliance engine synchronization requirement longitude coordinates and distance traveled, Monitoring specified in section 4.2. in miles, since the last valid position (b) An ELD required to establish a link to measurement. (a) An ELD must monitor its storage the engine ECM as described in section 4.2 (c) An ELD must monitor elapsed time capacity and integrity and must detect a data must monitor its connectivity to the engine during periods when the ELD fails to acquire recording compliance malfunction if it can ECM and its ability to retrieve the vehicle a valid position measurement within 5 miles no longer record or retain required events or

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retrieve recorded logs that are not otherwise indicator (described in sections 4.6.2.1 and copies of the driver’s own ELD records if catalogued remotely by the motor carrier. 4.6.3.1) to communicate the ELD’s driver’s records reside on or are accessible (b) An ELD must monitor the completeness malfunction or non-compliant state to the directly by the ELD unit used by the driver. of the ELD event record information in operator(s) of the ELD. (c) If an ELD meets the requirements of this relation to the required data elements for 4.6.2. ELD Malfunction Status Indicator section by making data files available to the each event type and must record a missing driver, it must also provide a utility function data elements data diagnostics event for the ELD malfunctions affect the integrity of the for the driver to display the data on a driver if any required field is missing at the device and its compliance; therefore, active computer, at a minimum, as specified in time of recording. malfunctions must be indicated to all drivers § 395.8(g). who may use that ELD. An ELD must provide 4.6.1.6. Monitoring Records Logged Under a recognizable visual indicator, and may 4.7.3. Privacy Preserving Provision for Use the Unidentified Driver Profile provide an audible signal, to the operator as During Personal Uses of a CMV (a) When there are ELD records involving to its malfunction status. (a) An ELD must record the events listed driving time logged on an ELD under the 4.6.2.1. Visual Malfunction Indicator in section 4.5.1 of this appendix under all unidentified driver profile, the ELD must circumstances. However, when a driver prompt the driver(s) logging in with a (a) An ELD must display a single visual indicates that the driver is temporarily using warning indicating the existence of new malfunction indicator for all drivers using the CMV for an authorized personal purpose, unassigned driving time. the ELD on the ELD’s display or on a stand- a subset of the recorded elements must either (b) The ELD must provide a mechanism for alone indicator. The visual signal must be be omitted in the records or recorded at a the driver to review and either acknowledge visible to the driver when the driver is seated lower precision level, as described in further the assignment of one or more of the in the normal driving position. detail below. The driver indicates this intent unidentified driver records attributable to the (b) The ELD malfunction indicator must be by setting the driver’s duty status to off-duty, driver under the authenticated driver’s clearly illuminated when there is an active as described in section 4.3.2.2.1, and profile as described in paragraph malfunction on the ELD. indicating authorized personal use of CMV as 4.3.2.8.2(b)(1) of this appendix or indicate (c) The malfunction status must be described in section 4.3.2.2.2. continuously communicated to the driver that these records are not attributable to the (b) During a period when a driver indicates when the ELD is powered. driver. authorized personal use of CMV, the ELD (c) If more than 30 minutes of driving in 4.6.3. ELD Data Diagnostic Status Indicator must: a 24-hour period show unidentified driver on ELD data diagnostic status affects only the (1) Record all new ELD events with the ELD, the ELD must detect and record an authenticated user; therefore, an ELD must latitude/longitude coordinates information unidentified driving records data diagnostic only indicate the active data diagnostics rounded to a single decimal place resolution; event and the data diagnostic indicator must status applicable to the driver logged into the and be turned on for all drivers logged in to that ELD. An ELD must provide a recognizable (2) Omit recording vehicle miles and ELD for the current 24-hour period and the visual indicator, and may provide an audible engine hours fields in new ELD logs by following 7 days. signal, to the driver as to its data diagnostics leaving them blank, except for events (d) An unidentified driving records data status. corresponding to a CMV’s engine power-up diagnostic event can be cleared by the ELD 4.6.3.1. Visual Data Diagnostics Indicator and shut-down activity as described in when driving time logged under the section 4.5.1.6 of this appendix. unidentified driver profile for the current 24- (a) An ELD must display a single visual (c) A driver’s indication that the CMV is hour period and the previous 7 consecutive data diagnostics indicator, apart from the being operated for authorized personal days drops to 15 minutes or less. visual malfunction indicator described in purposes may span more than one CMV section 4.6.2.1 of this appendix, to 4.6.1.7. Data Transfer Compliance Monitoring ignition on cycle if the driver proactively communicate visually the existence of active confirms continuation of the personal use (a) An ELD must implement in-service data diagnostics events for the applicable condition prior to placing the vehicle in monitoring functions to verify that the data driver. motion when the ELD prompts the driver at transfer mechanism(s) described in section (b) The visual signal must be visible to the the beginning of the new ignition power on 4.9.1 of this appendix are continuing to driver when the driver is seated in the cycle. function properly. An ELD must verify this normal driving position. functionality at least once every 7 days. 4.8. ELD Outputs 4.7. Special Purpose ELD Functions These monitoring functions may be 4.8.1. Printout or Display automatic or may involve manual steps for a 4.7.1. Driver’s ELD Volume Control The ELD must be able to generate a driver. (a) If a driver selects the sleeper-berth state (b) If the monitoring mechanism fails to compliant report as specified in this section, for the driver’s record of duty status, and no either as a printout or on a display. confirm proper in-service operation of the co-driver has logged into the ELD as on-duty data transfer mechanism(s), an ELD must driving, and if the ELD outputs audible 4.8.1.1. Print Paper Requirements record a data transfer data diagnostic event signals, the ELD must either: Print paper must be able to accommodate and enter an unconfirmed data transfer (1) Allow the driver to mute the ELD’s the graph grid specifications as listed in mode. volume or turn off the ELD’s audible output, section 4.8.1.3 of this appendix. (c) After an ELD records a data transfer or 4.8.1.2. Display Requirements data diagnostic event, the ELD must increase (2) Automatically mute the ELD’s volume the frequency of the monitoring function to or turn off the ELD’s audible output. (a) This section does not apply if an ELD check at least once every 24-hour period. If (b) For purposes of this section, if an ELD produces a printout for use at a roadside the ELD stays in the unconfirmed data operates in combination with another device inspection. transfer mode following the next three or other hardware or software technology that (b) An ELD must be designed so that its consecutive monitoring checks, the ELD must is not separate from the ELD, the volume display may be reasonably viewed by an detect a data transfer compliance controls required herein apply to the authorized safety official without entering malfunction. combined device or technology. the commercial motor vehicle. For example, 4.6.1.8. Other Technology-Specific 4.7.2. Driver’s Access to Own ELD Records the display may be untethered from its Operational Health Monitoring mount or connected in a manner that would (a) An ELD must provide a mechanism for allow it to be passed outside of the vehicle In addition to the required monitoring a driver to obtain a copy of the driver’s own for a reasonable distance. schemes described in sections 4.6.1.1–4.6.1.7 ELD records on demand, in either an of this appendix, the ELD provider may electronic or printout format compliant with 4.8.1.3. Information To Be Shown on the implement additional, technology-specific inspection standards outlined in section Printout and Display at Roadside malfunction and data diagnostic detection 4.8.2.1 of this appendix. (a) The printout and display must show schemes and may use the ELD’s malfunction (b) The process must not require a driver reports for the inspected driver’s profile and status indicator and data diagnostic status to go through the motor carrier to obtain the unidentified driver profile separately. If

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there are no unidentified driver records Driver License Number: <{Driver} Driver Driver’s Data Diagnostic Status: Diagnostic Event Status {and Diagnostic period and for any of the previous 7 Co-Driver: <{Co-Driver’s} Last Name>, <{Co- Description}{for Driver}> } consecutive days, an ELD does not need to Driver’s First Name> Date: Co-Driver ID: < ELD username{for the co- print or display unidentified driver records } Change of Duty Status, Intervening Interval for the authorized safety official. Otherwise, driver > Records and Change in Driver’s Indication Current Odometer: <{Current}{Total} both reports must be printed or displayed of Special Driving Conditions: Vehicle Miles> and provided to the authorized safety official. Current Engine Hours: <{Current}{Total} , Origin>,,< Event Date>, following information for the current 24-hour ELD ID: <{Event} Time>,<{Accumulated} Vehicle period and each of the previous 7 ELD Provider: Miles>,<{Elapsed} Engine Hours>, are data Truck Tractor ID: #,<{Event} Comment/ elements.) Number> Annotation> Date: Truck Tractor VIN: , Status>,, { } from UTC: <24-Hour Period Starting { } Type>,,< Event Unidentified Driving Records: < Current { } { } Time>, { Date>,< Event Time>,< Accumulated Data Diagnostic Event Indicator Status for { } Carrier: ,,< Elapsed Engine # { } Name> diagnostic’’ event}> Hours>, ,< Event { } Driver Name: < Driver Last Name>, Exempt Driver Status: <{Driver} First Name> Configuration {for the Driver}> # ‘‘ must be substituted with Driver ID < ELD username{for the driver} > ELD Malfunction Indicators: ’’ field for Driver License State <{Driver} Driver License Indicator Status {and Malfunction manual entries and with ‘‘<{blank}>’’ field Issuing State> Description} {for ELD}> for intervening logs.

24 Hours [Print/Display Graph Grid] Sleeper Berth on-duty not driving status}> far}> Driving Today}> status}>

[For Each Row of Driver’s Record [For Each Row of Malfunctions and Data Time: <{Event} Time> Certification Events] Diagnostic Events] Location: # Time: <{Event} Time> Time: <{Event} Time> Odometer: <{Total}Vehicle Miles> Location: # Location: # Engine Hours: <{Total}Engine Hours> Odometer: <{Total} Vehicle Miles> Odometer: <{Total}Vehicle Miles> Event: { } Engine Hours: <{Total} Engine Hours> Engine Hours: < Total Engine Hours> Origin: { } Event: Event: Comment: < Event Comment/Annotation> Origin: Driver Origin: [For Each Row of CMV Engine Power up/ { } Comment: <{Event} Comment/Annotation> Comment: < Event Comment/Annotation> Shut Down Events] [For Each Row of ELD Login/Logout Events] Time: <{Event} Time> (24 hours)

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Location: # Origin: Auto most recent data diagnostics events within Odometer: <{Total}Vehicle Miles> Comment/Annotation> the time period for which the report is Engine Hours: <{Total}Engine Hours> 1 Printout report must only list up to 10 generated. Event: most recent ELD malfunctions and up to 10

Example of Print/Display detail log data

Example of Full Day ELD Record:

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(c) The printout and display must show a 4.8.2.1.1. Header Segment User List: graph-grid consistent with § 395.8(g) showing This segment must include the following Each subsequent row must have the each change of duty status. data elements and format: following data elements: (1) On the printout, the graph-grid for each { } { } day’s RODS must be at least 6 inches by 1.5 ELD File Header Segment: < Assigned User Order Number>,< User’s ELD Account Type,<{User’s} Last inches in size. <{Driver’s} Last Name>,<{Driver’s} First Name>,<{User’s} First Name>,,< ELD username{for the driver}>,< Check Value> driver’s indications of authorized personal {Driver’s} Driver’s License Issuing use of CMV and yard moves using a different State>,<{Driver’s} Driver’s License 4.8.2.1.3. CMV List style line (such as dashed or dotted line) or Number>, This segment must list each CMV that the shading. The appropriate abbreviation must <{Co-Driver’s} Last Name>,<{Co-Driver’s} current driver operated and that has been also be indicated on the graph-grid. First Name>,, the time period for which this file is ,,, compliant with the format described herein with the most recent CMV being on top. This ,,,<24-Hour standardized display of ELD data sets on the depending on the number of CMVs operated Period Starting Time>,, environments. this file is generated. This section must start , (a) Regardless of the particular database Configuration>, architecture used for recording the ELD Each subsequent row must have the events in electronic format, the ELD must <{Current} Date,< {Current} Time>, < following data elements: produce a standard ELD data output file for {Current} Latitude>,<{Current} <{Assigned CMV} Order Number>,,, section. Hours>, 4.8.2.1.4. ELD Event List for Driver’s Record (b) Data output must be provided in a ,, of Duty Status single comma-delimited file outlined in this ,

, This segment must list ELD event records Code for Information Exchange (ASCII) tagged with event types 1 (a change in duty 4.8.2.1.2. User List character sets meeting the standards of ANSI status as described in section 4.5.1.1 of this INCITS 4–1986 (R2012) (incorporated by This segment must list all drivers and co- appendix), 2 (an intermediate log as reference, see § 395.38). It must include: drivers with driving time records on the most described in section 4.5.1.2), and 3 (a change (1) A header segment, which specifies recent CMV operated by the inspected driver in driver’s indication of conditions impacting current or non-varying elements of an ELD and motor carrier’s support personnel who driving time recording as described in file; and requested edits within the time period for section 4.5.1.3). The segment must list all (2) Variable length comma-delimited which this file is generated. The list must be event record status types and all event record segments for the drivers, vehicles, ELD in chronological order with most recent user origins for the driver, rank ordered with the events, ELD malfunction and data diagnostics of the ELD on top, and include the driver most current log on top in accordance with records, ELD login and logout activity, and being inspected, the co-driver, and the the date and time fields of the record. This unidentified driver records. unidentified driver profile. This segment has segment has a variable number of rows (3) Any field value that may contain a a variable number of rows depending on the depending on the number of ELD events comma (‘‘,’’) or a carriage return () must number of profiles with activity over the time recorded for the driver over the time period be replaced with a semicolon (‘;’) before period for which this file is generated. This for which this file is generated. This section generating the compliant CSV output file. section must start with the following title: must start with the following title:

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ELD Event List: segment has a variable number of rows Unidentified Driver Profile Records: Each subsequent row must have the depending on the number of ELD Each subsequent row must have the following data elements: malfunctions and ELD diagnostic event following data elements: records recorded and relevant to the ,,,,,,, ,<{Event} Date>,< which this file is generated. This section Type>,,<{Event} {Event}Time>,<{Accumulated} Vehicle must start with the following title: Date>,<{Event} Time>,< {Accumulated} Miles>,<{Elapsed} Engine Hours>, {Event} Malfunctions and Data Diagnostic Events: Vehicle Miles>,< {Elapsed} Engine ,<{Event}Longitude>, Hours>,<{Event} Latitude>,<{Event} Since Last Valid Coordinates>, < Longitude>,, <{Corresponding CMV} following data elements: Number>,<{User} Order Number {for Order Number>,,,,,,, { Code>,<{Event} Date>,<{Event} Diagnostic Event Indicator Status for 4.8.2.1.11. File Data Check Value Driver}>,,,<{Total} Vehicle Miles>,<{Total} Data Check Value> Engine Hours>, <{Corresponding CMV} This segment lists the file data check value as specified in section 4.4.5.3 of this 4.8.2.1.5. Event Annotations, Comments, and Order Number>, appendix. This part includes a single line as Driver’s Location Description follows: 4.8.2.1.8. ELD Login/Logout Report This segment must list only the elements End of File: of the ELD event list created in section This segment must list the login and logout 4.8.2.1.4 of this appendix that have an activity on the ELD (ELD events with event annotation, comment, or a manual entry of type 5 (A driver’s login/logout activity)) for 4.8.2.2. ELD Output File Name Standard location description by the driver. This the inspected driver for the time period for If the ELD output is saved in a file for segment has a variable number of rows which this file is generated. It must be rank transfer or maintenance purposes, it must depending on the number of ELD events ordered with the most recent activity on top. follow the 25 character-long filename under section 4.8.2.1.4 that feature a This section must start with the following standard below: comment, annotation, or manual location title: (a) The first five position characters of the entry by the driver. This section must start filename must correspond to the first five ELD Login/Logout Report: with the following title: letters of the last name of the driver for ELD Event Annotations or Comments: Each subsequent row must have the whom the file is compiled. If the last name Each subsequent row must have the following data elements: of the driver is shorter than five characters, following data elements: ,,,,< Event { } { } For example, if the last name of the driver username {of the Record Date>,< Event Time>,< Total Vehicle { } is ‘‘Lee’’, the first five characters of the Originator}>,<{Event} Comment Text or Miles>,< Total Engine Hours>, output file must feature ‘‘Lee ’’. Annotation>,< Event Date>,< Event (b) The sixth and seventh position Time>, , Down Activity the last two digits of the driver’s license This segment must list the logs created number for the driver for whom the file is 4.8.2.1.6. ELD Event List for Driver’s when a CMV’s engine is powered up and compiled. Certification of Own Records shut down (ELD events with event type 6 (c) The eighth and ninth position This segment must list ELD event records (CMV’s engine power up/shut down)) for the characters of the filename must correspond to with event type 4 (driver’s certification of time period for which this file is generated. the sum of all individual numeric digits in own records as described in section 4.5.1.4 It must be rank ordered with the latest the driver’s license number for the driver for of this appendix) for the inspected driver for activity on top. This section must start with whom the file is compiled. The result must be represented in two-digit format. If the sum the time period for which this file is the following title: generated. It must be rank ordered with the value exceeds 99, use the last two digits of most current record on top. This segment has CMV Engine Power-Up and Shut Down the result. For example, if the result equals a variable number of rows depending on the Activity: ‘‘113’’, use ‘‘13’’. If the result is less than 10, number of certification and re-certification Each subsequent row must have the use 0 as the first digit. For example, if the actions the authenticated driver may have following data elements: result equals ‘‘5’’, use ‘‘05’’. executed on the ELD over the time period for (d) The tenth through fifteenth position ,,<{Event} Date>,<{Event} must start with the following title: { } { } the date the file is created. The result must Time>,< Total Vehicle Miles>,< Total be represented in six digit format { } Driver’s Certification/Recertification Actions: Engine Hours>,< Event ‘‘MMDDYY’’ where ‘‘MM’’ represents the { } Latitude>,< Event Longitude>,,,,,, Number>, represented as ‘‘020513’’. <{Event} Date>,<{Event} Time>,,<{Corresponding Unidentified Driver Profile filename must be a hyphen ‘‘-’’. } (f) The seventeenth through twenty-fifth CMV Order Number>, position characters of the filename must, by records for the Unidentified Driver profile, default, be ‘‘000000000’’ but each of these 4.8.2.1.7. Malfunction and Diagnostic Event rank ordered with most current log on top in nine digits can be freely configured by the Records accordance with the date and time fields of motor carrier or the ELD provider to be a This segment must list all malfunctions the logs. This segment has a variable number number between 0 and 9 or a character that have occurred on this ELD during the of rows depending on the number of between A and Z to be able to produce time period for which this file is generated. Unidentified Driver ELD records recorded distinct files—if or when necessary—that It must list diagnostic event records related over the time period for which this file is may otherwise be identical in filename as per to the driver being inspected, rank ordered generated. This section must start with the the convention proposed in this section. ELD with the most current record on top. This following title: providers or motor carriers do not need to

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disclose details of conventions they may use in section 4.10.1.4 (both incorporated by be encrypted using the Secure/Multipurpose for configuring the seventeenth through reference, see § 395.38). Internet Mail Extensions as described in RFC twenty-fifth digits of the filename. 4.10. Communications Standards for the 5751 (incorporated by reference, see 4.9. Data Transfer Capability Requirements Transmittal of Data Files from ELDs § 395.38), and the RSA algorithm as described in RFC 4056 (incorporated by An ELD must be able to present the ELDs must transmit ELD records reference, see § 395.38), with the FMCSA captured ELD records of a driver in the electronically in accordance with the file public key compliant with NIST SP 800–32 standard electronic format as described format specified in section 4.8.2.1 of this (incorporated by reference, see § 395.38) to be below, and transfer the data file to an appendix and must be capable of a one-way provided to the ELD provider at the time of authorized safety official, on demand, for transfer of these records to authorized safety registration. The content must be encrypted inspection purposes. officials upon request as specified in section using AESin FIPS Publication 197 4.9.1. Data Transfer During Roadside Safety 4.9. (incorporated by reference, see § 395.38), and Inspections 4.10.1. Data Transfer Mechanisms RFC 3565 (incorporated by reference, see (a) On demand during a roadside safety For each type of data transfer mechanism, § 395.38). inspection, an ELD must produce ELD an ELD must follow the specifications in this (c) The email must be formatted using the records for the current 24-hour period and section. RFC 5322 Internet Message Format the previous 7 consecutive days in electronic (incorporated by reference, see § 395.38), as 4.10.1.1. Wireless Data Transfer via Web follows: format, in the standard data format described Services in section 4.8.2.1 of this appendix. (b) When a driver uses the single-step (a) Transfer of ELD data to FMCSA via Web Element Format driver interface, as described in section Services must follow the following standards: 4.3.2.4 of this appendix, to indicate that the (1) Web Services Description Language To : ......

must transfer the generated ELD data output 1.2 (incorporated by reference, see § 395.38). From : ...... authorized safety officials via the standards 5th Edition. Subject : ...... ELD records from <’:’> electronic data transfer requirements, an ELD Services, upon ELD provider registration as must do at least one of the following: described in section 5.1 of this appendix, Body : ......

(1) Option 1—Telematics transfer methods. (1) FMCSA will provide formatting files Attachment: .. MIME encoded AES–256 Transfer the electronic data using both: necessary to convert the ELD file into an encrypted file with (i) Wireless Web services, and XML format and upload the data to the ...aes Transfer the electronic data using both: Interface Control Document (ICD), and the (i) USB2 (incorporated by reference, see ELD Web Services Development Handbook, (d) A message confirming receipt of the § 395.38), and and ELD file will be sent to the address specified (ii) Bluetooth (incorporated by reference, (2) ELD Providers must obtain a Public/ in the email. The filename must follow the see § 395.38). Private Key pair compliant with the NIST SP convention specified in section 4.8.2.2 of this (c) The ELD must provide an ELD record 800–32, Introduction to Public Key appendix. for the current 24-hour period and the Technology and the Federal PKI previous 7 consecutive days as described in Infrastructure (incorporated by reference, see 4.10.1.3 Data Transfer via USB 2.0 section 4.8.1.3 either on a display or on a § 395.38), and submit the public key with (a) ELDs certified for the USB data transfer printout. their registration. mechanism must be capable of transferring (d) An ELD must support one of the two (3) ELD Providers will be required to ELD records using the Universal Serial Bus options for roadside data transfer in complete a test procedure to ensure their data Specification (Revision 2.0) (incorporated by paragraph (b) of this section, and must certify is properly formatted before they can begin reference, see § 395.38). proper operation of each element under that submitting driver’s ELD data to the FMCSA (b) Each ELD technology must implement option. An authorized safety official will server. a single USB-compliant interface with the specify which transfer mechanism the official (c) ELD data transmission must be necessary adaptors for a Type A connector. will use within the certified transfer accomplished in a way that protects the The USB interface must implement the Mass mechanisms of an ELD. privacy of the driver(s). Storage class (08h) for driverless operation, to 4.9.2. Motor Carrier Data Reporting (d) At roadside, if both the vehicle operator comply with IEEE standard 1667–2009, and law enforcement have an available data (incorporated by reference, see § 395.38). (a) An ELD must be capable of retaining connection, the vehicle operator will initiate (c) The ELD must be capable of providing copies of electronic ELD records for a period the transfer of ELD data to an authorized power to a standard USB-compatible drive. of at least 6 months from the date of receipt. safety official. In some cases, an ELD may be (d) An ELD must re-authenticate the driver (b) An ELD must produce, on demand, a capable of converting the ELD file to an XML prior to saving the driver’s ELD file to an data file or a series of data files of ELD format using an FMCSA-provided schema external device. records for a subset of its drivers, a subset of and upload it using information provided in (e) On initiation by an authenticated its vehicles, and for a subset of the 6-month the WSDL file using SOAP via RFC 7230, driver, an ELD must be capable of saving ELD record retention period, to be specified by an RFC 7231, and RFC 5246, Transport Layer file(s) to USB-compatible drives (AES, in authorized safety official, in an electronic Security (TLS) Protocol Version 1.2 FIPS Publication 197, incorporated by format standard described in section 4.8.2.1 (incorporated by reference, see § 395.38). reference, see § 395.38) that are provided by of this appendix or, if the motor carrier has authorized safety officials during an multiple offices or terminals, within the time 4.10.1.2. Wireless Data Transfer Through Email inspection. Prior to initiating this action, permitted under § 390.29. ELDs must be capable of reading a text file (c) At a minimum, an ELD must be able to (a) The ELD must attach a file to an email from an authorized safety officials’ drive and transfer the ELD records electronically by one message to be sent using RFC 5321 Simple verifying it against a file provided to ELD of the following transfer mechanisms: Mail Transfer Protocol (SMTP) (incorporated providers who have registered their (1) Web Services as specified in section by reference, see § 395.38), to a specific email technologies as described in section 5.1 of 4.10.1.1 of this appendix (but not necessarily address, which will be shared with the ELD this appendix. wirelessly), and Email as specified 4.10.1.2 providers during the technology registration ® (but not necessarily wirelessly); or process. 4.10.1.4. Data Transfer via Bluetooth (2) USB 2.0 as specified in section 4.10.1.3 (b) The file must have the format described (a) Bluetooth SIG Specification of the of this appendix and Bluetooth, as specified in section 4.8.2.1 of this appendix and must Bluetooth System covering core package

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version 2.1 + EDR (incorporated by reference, 5.1.3. Authentication Information determine which products have been see § 395.38) must be followed. ELDs using Distribution properly registered and certified as ELDs this standard must be capable of displaying FMCSA will provide a unique ELD compliant with this appendix. a Personal Identification Number generated registration ID, authentication key(s), 5.4. Removal of Listed Certification by the Bluetooth application profile for authentication file(s), and formatting and 5.4.1. Removal Process bonding with other devices(incorporated by configuration details required in this reference, see § 395.38). appendix to registered providers during the FMCSA may remove an ELD model or (b) Upon request of an authorized official, registration process. version from the list of ELDs on the FMCSA the ELD must become discoverable by the Web site in accordance with this section. 5.2. Certification of Conformity With FMCSA authorized safety officials’ Bluetooth-enabled 5.4.2. Notice computing platform, and generate a random Standards code, which the driver must share with the A registered ELD provider must certify that FMCSA shall initiate the removal of an official (incorporated by reference, see each ELD model and version has been ELD model or version from the list of ELDs § 395.38). sufficiently tested to meet the functional on the FMCSA Web site by providing the (c) The ELD must connect to the roadside requirements included in this appendix ELD provider written notice stating: authorized safety officials’ technology via under the conditions in which the ELD (a) The reasons FMCSA proposes to wireless personal area network and transmit would be used. remove the model or version from the FMCSA list; and the required data via Web Services as 5.2.1. Online Certification (b) Any corrective action that the ELD described in section 4.10.1.1 of this (a) An ELD provider registered online as provider must take for the ELD model or appendix. described in section 5.1.1 of this appendix version to remain on the list. 4.10.2. Motor Carrier Data Transmission must disclose the information in paragraph 5.4.3. Response Regardless of the roadside transmission (b) of this section about each ELD model and An ELD provider that receives notice under option supported by an ELD, ELD records are version and certify that the particular ELD is section 5.4.2 of this appendix may submit a to be retained and must be able to transmit compliant with the requirements of this response to the Director, Office of Carrier enforcement-specified historical data for appendix. Driver, and Vehicle Safety Standards no later their drivers using one of the methods (b) The online process will only allow a than 30 days after issuance of the notice of specified under section 4.9.2 of this provider to complete certification if the proposed removal, explaining: appendix. provider successfully discloses all of the following required information: (a) The reasons why the ELD provider (a) Web services option must follow the believes the facts relied on by the Agency, in specifications described under section (1) Name of the product. (2) Model number of the product. proposing removal, are wrong; or 4.10.1.1 of this appendix. (b) The action the ELD provider will take (b) The email option must follow the (3) Software version of the product. (4) An ELD identifier, uniquely identifying to correct the deficiencies that FMCSA specifications described under section the certified model and version of the ELD, identified. 4.10.1.2 of this appendix. assigned by the ELD provider in accordance (c) The USB option must follow the 5.4.4. Agency Action with section 7.15 of this appendix. specifications of Universal Serial Bus (5) Picture and/or screen shot of the (a) If the ELD provider fails to respond Specification, revision 2.0 (incorporated by product. within 30 days of the date of the notice reference, see § 395.38) and described in (6) User’s manual describing how to issued under section 5.4.2 of this appendix, section 4.10.1.3 of this appendix. operate the ELD. the ELD model or version shall be removed (d) Bluetooth must follow the (7) Description of the supported and from the FMCSA list. specifications incorporated by reference (see certified data transfer mechanisms and step- (b) If the ELD provider submits a timely § 395.38) and described in section 4.10.1.4 of by-step instructions for a driver to produce response, the Director, Office of Carrier, this appendix. and transfer the ELD records to an authorized Driver, and Vehicle Safety Standards, shall review the response and withdraw the notice 5. ELD Registration and Certification safety official. (8) Summary description of ELD of proposed removal, modify the notice of As described in § 395.22(a) of this part, malfunctions. proposed removal, or affirm the notice of motor carriers must only use ELDs that are (9) Procedure to validate an ELD proposed removal, and notify the ELD listed on the FMCSA Web site. An ELD authentication value as described in section provider in writing of the determination. provider must register with FMCSA and 7.14 of this appendix. (c) Within 60 days of the determination, certify each ELD model and version for that (10) Certifying statement describing how the ELD provider shall take any action ELD to be listed on this Web site. the product was tested to comply with required to comply. If the Director 5.1. ELD Provider’s Registration FMCSA regulations. determines that the ELD provider failed to timely take the required action within the 60 5.1.1. Registering Online 5.2.2. Procedure To Validate an ELD’s day period, the ELD model or version shall Authenticity (a) An ELD provider developing an ELD be removed from the FMCSA list. technology must register online at a secure Paragraph 5.2.1(b)(9) of this appendix (d) The Director, Office of Carrier, Driver, FMCSA Web site where the ELD provider can requires that the ELD provider identify its and Vehicle Safety Standards may request securely certify that its ELD is compliant authentication process and disclose from the ELD provider any information that with this appendix. necessary details for FMCSA systems to the Director considers necessary to make a (b) Provider’s registration must include the independently verify the ELD authentication determination under this section. values included in the dataset of inspected following information: 5.4.5. Administrative Review (1) Company name of the technology ELD outputs. The authentication value must provider/manufacturer. include a hash component that only uses (a) Within 30 days of removal of an ELD (2) Name of an individual authorized by data elements included in the ELD dataset model or version from the FMCSA list of the provider to verify that the ELD is and datafile. ELD authentication value must certified ELDs under section 5.4.4 of this compliant with this appendix and to certify meet the requirements specified in section appendix, the ELD provider may request it under section 5.2 of this appendix. 7.14 of this appendix. administrative review. (b) A request for administrative review (3) Address of the registrant. 5.3. Publicly Available Information (4) Email address of the registrant. must be submitted in writing to the FMCSA (5) Telephone number of the registrant. Except for the information listed under Associate Administrator for Policy. The paragraphs 5.1.1(b)(2), (4), and (5) and request must explain the error committed in 5.1.2. Keeping Information Current 5.2.1(b)(9) of this appendix, FMCSA will removing the ELD model or version from the The ELD provider must keep the make the information in sections 5.1.1 and FMCSA list, identify all factual, legal, and information in section 5.1.1(b) of this 5.2.1 for each certified ELD publicly available procedural issues in dispute, and include any appendix current through FMCSA’s Web site. on a Web site to allow motor carriers to supporting information or documents.

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(c) The Associate Administrator may ask approved August 2008, IBR in section Data Length: 6 characters. the ELD provider to submit additional 4.10.1.1, Appendix A to subpart B. Data Format: Military time information or attend a conference to discuss (4) IETF RFC 5321, Simple Mail Transfer format, where ‘‘HH’’ refers to hours, the removal. If the ELD provider does not Protocol, approved October 2008, IBR in ‘‘MM’’ refers to minutes, and ‘‘SS’’ refers submit the requested information or attend section 4.10.1.2, Appendix A to subpart B. to seconds; designation for start time the scheduled conference, the Associate (5) IETF RFC 5322, Internet Message expressed in time standard in effect at the Administrator may dismiss the request for Format, approved October 2008, IBR in driver’s home terminal. administrative review. section 4.10.1.2, Appendix A to subpart B. Disposition: Mandatory. (d) The Associate Administrator will (6) IETF RFC 5751, Secure/Multipurpose Examples: [060000], [073000], [180000]. complete the administrative review and Internet Mail Extensions (S/MIME) Version 7.2. Carrier Name notify the ELD provider of the decision in 3.2, Message Specification, approved January writing. The decision constitutes a final 2010, IBR in section 4.10.1.2, Appendix A to Description: This data element refers to the Agency action. subpart B. motor carrier’s legal name for conducting (7) IETF RFC 7230, Hypertext Transfer commercial business. 6. References Protocol (HTTP/1.1): Message Syntax and Purpose: Provides a recognizable identifier (a) American National Standards Institute Routing, approved June 2014, IBR in section about the motor carrier on viewable ELD (ANSI). 11 West 42nd Street, New York, New 4.10.1.1, Appendix A to subpart B. outputs; provides ability to cross check York 10036, http://webstore.ansi.org, (212) (8) IETF RFC 7231, Hypertext Transfer against USDOT number. 642–4900. Protocol (HTTP/1.1): Semantics and Content, Source: FMCSA’s Safety and Fitness (1) ANSI INCITS 4–1986 (R2012), approved June 2014, IBR in section 4.10.1.1, Electronic Records (SAFER) System. American National Standard for Information Appendix A to subpart B. Used in: ELD account profile. Systems—Coded Character Sets—7-Bit (e) National Institute of Standards and Data Type: Programmed on the ELD or American National Standard Code for Technology (NIST). 100 Bureau Drive, Stop entered once during the ELD account Information Interchange (7-Bit ASCII), 1070, Gaithersburg, MD 20899–1070, http:// creation process. approved June 14, 2007, IBR in section www.nist.gov, (301) 975–6478. Data Range: Any alphanumeric 4.8.2.1, Appendix A to subpart B. (1) Federal Information Processing combination. (2) ANSI INCITS 446–2008 (R2013), Standards Publication (FIPS PUB) 197, Data Length: Minimum: 4; Maximum: 120 American National Standard for Information Advanced Encryption Standard (AES), characters. Technology—Identifying Attributes for approved November 26, 2001, IBR in sections Data Format: as in Named Physical and Cultural Geographic 4.10.1.2 and 4.10.1.3, Appendix A to subpart to . Features (Except Roads and Highways) of the B. Disposition: Mandatory. (2) SP 800–32, Introduction to Public Key United States, Territories, Outlying Areas, Example: [CONSOLIDATED TRUCKLOAD Technology and the Federal PKI and Freely Associated Areas, and the Waters INC.]. Infrastructure, approved February 26, 2001, of the Same to the Limit of the Twelve-Mile IBR in section 4.10.1.2, Appendix A to 7.3. Carrier’s USDOT Number Statutory Zone, approved October 28, 2008, subpart B. Description: This data element refers to the IBR in section 4.4.2, Appendix A to subpart (f) Universal Serial Bus Implementers motor carrier’s USDOT number. B. Forum (USBIF). 3855 SW. 153rd Drive, Purpose: Uniquely identifies the motor (b) Bluetooth SIG, Inc. 5209 Lake Beaverton, Oregon 97006, http:// carrier employing the driver using the ELD. Washington Blvd. NE., Suite 350, Kirkland, www.usb.org, (503) 619–0426. Source: FMCSA’s Safety and Fitness WA 98033, https://www.bluetooth.org/ (1) USB Implementers Forum, Inc., Electronic Records (SAFER) System. Technical/Specifications/adopted.htm, (425) Universal Serial Bus Specification, Revision Used in: ELD account profiles; ELD event 691–3535. 2.0, approved April 27, 2000, as revised records; ELD output file. (1) Bluetooth SIG, Inc., Specification of the through April 3, 2015, IBR in sections 4.9.1, Data Type: Programmed on the ELD or Bluetooth System: Wireless Connections 4.9.2, 4.10.1.3, and 4.10.2, Appendix A to entered once during the ELD account Made Easy, Covered Core Package version 2.1 subpart B. creation process. + EDR, volumes 0 through 4, approved July (2) [Reserved] Data Range: An integer number of length 26, 2007, IBR in sections 4.9.1, 4.9.2, (g) World Wide Web Consortium (W3C). 32 1–8 assigned to the motor carrier by FMCSA 4.10.1.4, 4.10.2, Appendix A to subpart B. Vassar Street, Building 32–G514, Cambridge, (9 position numbers reserved). (2) [Reserved] MA 02139, http://www.w3.org, (617) 253– Data Length: Minimum: 1; Maximum: 9 (c) Institute of Electrical and Electronic 2613. characters. Engineers (IEEE) Standards Association. 445 (1) W3C Recommendation 27, SOAP Data Format: Hoes Lane, Piscataway, NJ 08854–4141, Version 1.2 Part 1: Messaging Framework as in . http://standards.ieee.org/index.html, (732) (Second Edition), including errata, approved Disposition: Mandatory. 981–0060. April 2007, IBR in section 4.10.1.1, Appendix Examples: [1], [1000003]. (1) IEEE Std 1667–2009, IEEE Standard for A to subpart B. Authentication in Host Attachments of (2) [Reserved] 7.4. CMV Power Unit Number Transient Storage Devices, approved 11 7. Data Elements Dictionary Description: This data element refers to the November 2009, IBR in section 4.10.1.3, identifier the motor carrier uses for their Appendix A to subpart B. 7.1. 24-Hour Period Starting Time CMVs in their normal course of business. (2) [Reserved] Description: This data element refers to the Purpose: Identifies the vehicle a driver (d) Internet Engineering Task Force (IETF). 24-hour period starting time specified by the operates while a driver’s ELD records are C/o Association Management Solutions, LLC motor carrier for driver’s home terminal. recorded; Makes ELD records consistent with (AMS) 48377 Freemont Blvd., Suite 117, Purpose: Identifies the bookends of the § 395.8 requirements, which require the truck Freemont, CA 94538, (510) 492–4080. work day for the driver; makes ELD records or tractor number to be included on the form. (1) IETF RFC 3565, Use of the Advanced consistent with § 395.8 requirements, which Source: Unique CMV identifiers a motor Encryption Standard (AES) Encryption require this information to be included on carrier uses in its normal course of business Algorithm in Cryptographic Message Syntax the form. and includes on dispatch documents, or the (CMS), approved July 2003, IBR in section Source: Motor carrier. license number and the licensing State of the 4.10.1.2, Appendix A to subpart B. Used in: ELD account profile; ELD outputs. power unit. (2) IETF RFC 4056, Use of the RSASSA– Data Type: Programmed or populated on Used in: ELD event records; ELD output PSS Signature Algorithm in Cryptographic the ELD during account creation and file. Message Syntax (CMS), approved June 2005, maintained by the motor carrier to reflect Data Type: Programmed on the ELD or IBR in section 4.10.1.2, Appendix A to true and accurate information for drivers. populated by motor carrier’s extended ELD subpart B. Data Range: 000000 to 235959; first two system or entered by the driver. (3) IETF RFC 5246, The Transport Layer digits 00 to 23; middle two digits and last Data Range: Any alphanumeric Security (TLS) Protocol Version 1.2, two digits 00 to 59. combination.

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Data Length: Minimum: 1; Maximum: 10 Data Range: Free form text of any Data Length: 6 characters. characters. alphanumeric combination. Data Format: where Data Format: Data Length: 0–60 characters if optionally must be between 01 and 12,

must be as in to . entered; 4–60 characters if annotation is between 01 and 31, and must be Disposition: Mandatory for all CMVs required and driver is prompted by the ELD. between 00 and 99. operated while using an ELD. Data Format: as Disposition: Mandatory. { } Examples: [123], [00123], [BLUEKW123], in < blank > or to . Examples: [122815], [010114], [061228]. [TX12345]. Disposition: Optional in general; Mandatory if prompted by ELD. 7.9. Distance Since Last Valid Coordinates 7.5. CMV VIN Examples: [], [Personal Conveyance. Description: Distance in whole miles Description: This data element refers to the Driving to Restaurant in bobtail mode], traveled since the last valid latitude, manufacturer-assigned vehicle identification [Forgot to switch to SB. Correcting here]. longitude pair the ELD measured with the number (VIN) for the CMV powered unit. required accuracy. Purpose: Uniquely identifies the operated 7.7. Data Diagnostic Event Indicator Status Purpose: Provides ability to keep track of CMV not only within a motor carrier at a Description: This is a Boolean indicator location for recorded events in cases of given time but across all CMVs sold within identifying whether the used ELD unit has an temporary position measurement outage. a 30-year rolling period. active data diagnostic event set for the Source: A robust unique CMV identifier authenticated driver at the time of event Source: ELD internal calculations. standardized in North America. recording. Used in: ELD events; ELD outputs. Used in: ELD event records; ELD output Purpose: Documents the snapshot of ELD’s Data Type: Kept track of by the ELD based file. data diagnostic status for the authenticated on position measurement validity. Data Type: Retrieved from the engine ECM driver at the time of an event recording. Data Range: An integer value between 0 via the vehicle databus. Source: ELD internal monitoring functions. and 6; If the distance traveled since the last Data Range: Either blank or 17 characters Used in: ELD events; ELD outputs. valid coordinate measurement exceeds 6 long as specified by NHTSA in 49 CFR part Data Type: Internally monitored and miles, the ELD must enter the value as 6. 565, or 18 characters long with first character managed. Data Length: 1 character. assigned as ‘‘-’’ (dash) followed by the 17 Data Range: 0 (no active data diagnostic Data Format: as in . character position 9, as specified in 49 CFR data diagnostic event set for the driver). Disposition: Mandatory. part 565 must imply a valid VIN. Data Length: 1 character. Examples: [0], [1], [5], [6]. Data Length: Blank or 17–18 characters. Data Format: or <‘‘-’’> as in . 7.10. Driver’s License Issuing State VIN> or <{blank}> as in Disposition: Mandatory. Description: This data element refers to the , or Examples: [0] or [1]. issuing State, Province or jurisdiction of the <-CCCCCCCCCCCCCCCCC> or <>. listed Driver’s License for the ELD account 7.8. Date Disposition: Mandatory for all ELDs linked holder. to the engine ECM and when VIN is available Description: In combination with the Purpose: In combination with ‘‘Driver’s from the engine ECM over the vehicle variable ‘‘Time’’, this parameter stamps License Number’’, it links the ELD driver databus; otherwise optional. If optionally records with a reference in time; even though account holder uniquely to an individual populated and source is not the engine ECM, date and time must be captured in UTC, with driving credentials; ensures that only precede VIN with the character ‘‘-’’ in event records must use date and time one driver account can be created per records. converted to the time zone in effect at the individual. Examples: [1FUJGHDV0CLBP8834], driver’s home terminal as specified in section Source: Driver’s license. [-1FUJGHDV0CLBP8896], []. 4.4.3. Used in: ELD account profile(s); ELD Purpose: Provides ability to record the output file. 7.6. Comment/Annotation instance of recorded events. Data Type: Entered (during the creation of Description: This is a textual note related Source: ELD’s converted time a new ELD account). to a record, update, or edit capturing the measurement. comment or annotation a driver or authorized Used in: ELD events; ELD outputs. Data Range: To character abbreviation support personnel may input to the ELD. Data Type: UTC date must be listed on Table 5 of this appendix. Purpose: Provides ability for a driver to automatically captured by ELD; date in effect Data Length: 2 characters. offer explanations to records, selections, at the driver’s home terminal must be Data Format: as in . Source: Driver or authorized support Data Range: Any valid date combination Disposition: Mandatory for all driver personnel. expressed in format where accounts created on the ELD; optional for Used in: ELD events; ELD outputs. ‘‘MM’’ refers to months, ‘‘DD’’ refers to days ‘‘non-driver’’ accounts. Data Type: Entered by the authenticated of the month and ‘‘YY’’ refers to the last two Example: [WA]. user via ELD’s interface. digits of the calendar year. BILLING CODE 4910–EX–P

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Table 5

State and Province Abbreviation Codes

U.S.A. STATE CODE STATE STATE CODE STATE AL ALABAMA MT MONTANA

CT CONNECTICUT NM NEW MEXICO

IL ILLINOIS SC SOUTH CAROLINA

AMERICAN POSSESSIONS OR PROTECTORATES STATE CODE STATE AS AMERICANSAMOA

VI VIRGIN ISLANDS

CANADA PROVINCE CODE PROVINCE AB ALBERTA COLUMBIA

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BILLING CODE 4910–EX–P Data Length: Minimum: 1; Maximum: 20 7.12. Driver’s Location Description 7.11. Driver’s License Number characters. Description: This is a textual note related Data Format: Description: This data element refers to the to the location of the CMV input by the unique Driver’s License information required as in to . driver upon ELD’s prompt. for each driver account on the ELD. For ELD record keeping purposes, ELD must Purpose: Provides ability for a driver to Purpose: In combination with driver’s only retain characters in a Driver’s License enter location information related to entry of license issuing State, it links the ELD driver Number entered during an account creation missing records; provides ability to account holder to an individual with driving process that are a number between 0–9 or a accommodate temporary positioning service credentials; ensures that only one driver character between A–Z (non-case sensitive). interruptions or outage without setting account can be created per individual. Disposition: Mandatory for all driver positioning malfunctions. Source: Driver’s license. accounts created on the ELD; optional for Source: Driver, only when prompted by the Used in: ELD account profile(s); ELD ‘‘non-driver’’ accounts. output file. ELD. Examples: [SAMPLMJ065LD], Data Type: Entered (during the creation of Used in: ELD events; ELD outputs. a new ELD account). [D000368210361], [198], Data Type: Entered by the authenticated Data Range: Any alphanumeric [N02632676353666]. driver when ELD solicits this information as combination. specified in section 4.3.2.7.

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Data Range: Free form text of any Data Type: Coded on the ELD by the ELD Data Type: Entered (during account alphanumeric combination. provider and disclosed to FMCSA during the creation and user authentication). Data Length: 5–60 characters. online certification process. Data Range: Any alphanumeric Data Format: to . Data Range: A six character alphanumeric combination. Disposition: Mandatory when prompted by identifier using characters A–Z and number Data Length: Minimum: 4; Maximum: 60 ELD. 0–9. characters. Examples: [], [5 miles SW of Indianapolis, Data Length: 6 characters. Data Format: as in IN], [Reston, VA]. Data Format: as in to . . 7.13. ELD Account Type Disposition: Mandatory for all accounts Disposition: Mandatory. created on the ELD. Description: An indicator designating Examples: [1001ZE], [GAM112], [02P3P1]. Examples: [smithj], [100384], [sj2345], whether an ELD account is a driver account 7.16. ELD Provider [john.smith]. or support personnel (non-driver) account. Purpose: Enables authorized safety officials Description: An alphanumeric company 7.19. Engine Hours to verify account type specific requirements name of the technology provider as registered Description: This data element refers to the set forth in this document. at the FMCSA’s Web site. time the CMV’s engine is powered in decimal Source: ELD designated. Purpose: Provides ability to cross-check that the ELD used in the recording of a hours with 0.1 hr (6-minute) resolution; this Used in: ELD outputs. { } Data Type: Specified during the account driver’s records is certified through FMCSA’s parameter is a placeholder for < Total creation process and recorded on ELD. registration and certification process as Engine Hours>, which refers to the Data Range: Character ‘‘D’’, indicating required. aggregated time of a vehicle’s engine’s account type ‘‘Driver’’, or ‘‘S’’, indicating Source: Assigned and submitted by the operation since its inception, and used in account type ‘‘motor carrier’s support ELD provider during the online registration recording ‘‘engine power on’’ and ‘‘engine { } personnel’’ (i.e. non-driver); ‘‘Unidentified process. shut down’’ events, and also for < Elapsed Driver’’ account must be designated with Used in: ELD outputs. Engine Hours>, which refers to the elapsed type ‘‘D’’. Data Type: Coded on the ELD by the ELD time in the engine’s operation in the given Data Length: 1 character. provider and disclosed to FMCSA during the ignition power on cycle, and used in the Data Format: . online registration process. recording of all other events. Disposition: Mandatory. Data Range: Any alphanumeric Purpose: Provides ability to identify gaps Examples: [D], [S]. combination. in the operation of a CMV, when the Data Length: Minimum: 4; Maximum 120 vehicle’s engine may be powered but the ELD 7.14. ELD Authentication Value characters. may not; provides ability to cross check Description: An alphanumeric value that is Data Format: as in integrity of recorded data elements in events unique to an ELD and verifies the to . and prevent gaps in the recording of ELD. Disposition: Mandatory. authenticity of the given ELD. Source: ELD measurement or sensing. Examples: [ELD PROVIDER INC]. Purpose: Provides ability to cross-check the Used in: ELD events; ELD outputs. authenticity of an ELD used in the recording 7.17. ELD Registration ID Data Type: Acquired from the engine ECM of a driver’s records during inspections. Description: An alphanumeric registration or a comparable other source as allowed in Source: ELD provider-assigned value; identifier assigned to the ELD provider that section 4.3.1.4. includes a certificate component and a is registered with FMCSA during the ELD Data Range: For <{Total} Engine Hours>, hashed component; necessary information registration process. range is between 0.0 and 99,999.9; for related to authentication keys and hash Purpose: Provides ability to cross-check <{Elapsed} Engine Hours>, range is between procedures disclosed by the registered ELD that the ELD provider has registered as 0.0 and 99.9. provider during the online ELD certification required. Data Length: 3–7 characters. process for independent verification by Source: Received from FMCSA during Data Format: as in FMCSA systems. online provider registration. to . Used in: ELD outputs. Used in: ELD outputs. Disposition: Mandatory. Data Type: Calculated from the Data Type: Coded on the ELD by the Examples: [0.0], [9.9], [346.1], [2891.4]. authentication key and calculation procedure provider. privately distributed by the ELD provider to Data Range: A four character alphanumeric 7.20. Event Code FMCSA during the ELD registration process. registration identifier using characters A–Z Description: A dependent attribute on Data Range: Alphanumeric combination. and numbers 0–9. ‘‘Event Type’’ parameter that further specifies Data Length: 16–32 characters. Data Length: 4 characters. the nature of the change indicated in ‘‘Event Data Format: . Data Format: as in Type’’; this parameter indicates the new Disposition: Mandatory. . status after the change. Example: [D3A4506EC8FF566B506EC8FF Disposition: Mandatory. Purpose: Provides ability to code the 566BDFBB]. Examples: [ZA10], [QA0C], [FAZ2]. specific nature of the change electronically. 7.15. ELD Identifier 7.18. ELD Username Source: ELD internal calculations. Used in: ELD event records; ELD outputs. Description: An alphanumeric identifier Description: This data element refers to the Data Type: ELD recorded and maintained assigned by the ELD provider to the ELD unique user identifier assigned to the account technology that is certified by the registered holder on the ELD to authenticate the event attribute in accordance with the type provider at FMCSA’s Web site. corresponding individual during an ELD of event and nature of the new status being Purpose: Provides ability to cross-check login process; the individual may be a driver recorded. that the ELD used in the recording of a or a motor carrier’s support personnel. Data Range: Dependent on the ‘‘Event driver’s records is certified through FMCSA’s Purpose: Documents the user identifier Type’’ as indicated on Table 6 of this registration and certification process as assigned to the driver linked to the ELD appendix. required. account. Data Length: 1 character. Source: Assigned and submitted by the Source: Assigned by the motor carrier Data Format: as in . ELD provider during the online certification during the creation of a new ELD account. Disposition: Mandatory. of an ELD model and version. Used in: ELD account profile; event Examples: [0], [1], [4], [9]. Used in: ELD outputs. records; ELD login process. BILLING CODE 4910–EX–P

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BILLING CODE 4910–EX–C Data Range: A number between Purpose: Provides ability to track origin of 7.21. Event Data Check Value hexadecimal 00 (decimal 0) and hexadecimal the records. FF (decimal 255). Source: ELD internal calculations. Description: A hexadecimal ‘‘check’’ value Data Length: 2 characters. Used in: ELD event records; ELD outputs. calculated in accordance with the procedure Data Type: ELD recorded and maintained outlined in section 4.4.5.1 of this appendix Data Format: as and attached to each event record at the time in . event attribute in accordance with the of recording. Disposition: Mandatory. procedures outlined in sections 4.4.4.2.2, Purpose: Provides ability to identify cases Examples: [05], [CA], [F3]. 4.4.4.2.3, 4.4.4.2.4, 4.4.4.2.5, and 4.4.4.2.6 of this appendix. where an ELD event record may have been 7.22. Event Record Origin inappropriately modified after its original Data Range: 1, 2, 3 or 4 as described on recording. Description: An attribute for the event Table 7 of this appendix. Source: ELD internal. record indicating whether it is automatically Data Length: 1 character. Used in: ELD events; ELD output file. recorded, or edited, entered or accepted by Data Format: as in Data Type: Calculated by the ELD in the driver, requested by another . accordance with section 4.4.5.1 of this authenticated user, or assumed from Disposition: Mandatory. appendix. unidentified driver profile. Examples: [1], [2], [3], [4].

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7.23. Event Record Status Purpose: Provides ability to keep track of 4.4.4.2.3, 4.4.4.2.4, 4.4.4.2.5, and 4.4.4.2.6 of Description: An attribute for the event edits and entries performed over ELD records this appendix. Data Range: 1, 2, 3 or 4 as described on record indicating whether an event is active while retaining original records. Source: ELD internal calculations. Table 8 of this appendix. or inactive and further, if inactive, whether Data Length: 1 character. it is due to a change or lack of confirmation Used in: ELD event records; ELD outputs. Data Type: ELD recorded and maintained Data Format: as in by the driver or due to a driver’s rejection of . event attribute in accordance with the change request. Disposition: Mandatory. procedures outlined in sections 4.4.4.2.2, Examples: [1], [2], [3], [4].

7.24. Event Sequence ID Number Data Range: 0 to FFFF; initial factory value Purpose: Provides ability to code the type Description: This data element refers to the must be 0; after FFFF hexadecimal (decimal of the recorded event in electronic format. serial identifier assigned to each required 65535), the next Event Sequence ID number Source: ELD internal calculations. ELD event as described in section 4.5.1 of must be 0. Used in: ELD event records; ELD outputs. this appendix. Data Length: 1–4 characters. Data Type: ELD recorded and maintained Purpose: Provides ability to keep a Data Format: as in to . of event being recorded. users of that ELD. Disposition: Mandatory. Data Range: 1–7 as described on Table 9 Source: ELD internal calculations. Examples: [1], [1F2C], p2D3], [BB], [FFFE]. of this appendix. Used in: ELD event records; ELD outputs. Data Length: 1 character. Data Type: ELD maintained; incremented 7.25. Event Type by 1 for each new record on the ELD; Data Format: as in . continuous for each new event the ELD Description: An attribute specifying the Disposition: Mandatory. records regardless of owner of the records. type of the event record. Examples: [1], [5], [4], [7].

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7.26. Exempt Driver Configuration Disposition: Mandatory. Data Range: Contains four segments in one Description: A parameter indicating Examples: [F0B5], [00CA], [523E]. text field; a recognizable location driven from GNIS database containing—at a minimum— whether the motor carrier configured a 7.28. First Name driver’s profile to claim exemption from ELD all cities, towns and villages with a use. Description: This data element refers to the population of 5,000 in text format containing Purpose: Provides ability to code the motor given name of the individual holding an ELD a location name and the State abbreviation, carrier-indicated exemption for the driver account. distance from this location and direction electronically. Purpose: Links an individual to the from this location. associated ELD account. Source: Motor carrier’s configuration for a Data Length: Minimum: 5; Maximum: 60 Source: Driver’s license for driver given driver. characters. accounts; driver’s license or government- Used in: ELD outputs. Data Format: <’mi ‘> <’ ‘> <’ Data Range: E (exempt) or 0 (number zero). ‘> Data Length: 1 character. a new ELD account). where: Data Format: as in . combination. Disposition: Mandatory. Data Length: Minimum: 2; Maximum: 30 must either be <{blank}> or or Examples: [E], [0]. characters. where the up-to two character number Data Format: as in to specifies absolute distance between 7.27. File Data Check Value where ‘‘C’’ denotes a character. identified geo-location and event location; Description: A hexadecimal ‘‘check’’ value Disposition: Mandatory for all accounts calculated in accordance with the procedure created on the ELD. must either be <{blank}> or or outlined in section 4.4.5.3 of this appendix Example: [John]. or , must represent direction of and attached to each ELD output file. 7.29. Geo-Location event location with respect to the Purpose: Provides ability to identify cases identified geo-location, and must take a Description: A descriptive indicator of the where an ELD file may have been value listed on Table 10 of this CMV position in terms of a distance and inappropriately modified after its original appendix; must take values Source: ELD internal. from a GNIS database at a minimum listed on Table 5; must be the text Data Type: Calculated by the ELD in a population of 5,000 or greater. description of the identified reference accordance with section 4.4.5.3 of this Purpose: Provide recognizable location appendix. information on a display or printout to users location; Data Range: A number between of the ELD. Overall length of the ‘‘Geo-location’’ hexadecimal 0000 (decimal 0) and Source: ELD internal calculations as parameter must not be longer than 60 hexadecimal FFFF (decimal 65535). specified in section 4.4.2 of this appendix. characters long. Data Length: 4 characters. Used in: ELD display or printout. Disposition: Mandatory. Data Format: as Data Type: Identified from the underlying Examples: [2mi ESE IL Darien], [1mi SE TX in . latitude/longitude coordinates by the ELD. Dallas], [11mi NNW IN West Lafayette].

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7.30. Last Name using reduced positioning precision when 7.33. Longitude Description: This data element refers to the allowed; latitudes north of the equator must Description: An angular distance in degrees last name of the individual holding an ELD be specified by the absence of a minus sign measured on a circle of reference with account. (¥) preceding the digits designating degrees; respect to the zero (or prime) meridian; The Purpose: Links an individual to the latitudes south of the Equator must be prime meridian runs through Greenwich, associated ELD account. designated by a minus sign (¥) preceding the England. Source: Driver’s license for driver digits designating degrees. Purpose: In combination with the variable accounts; driver’s license or government- Data Length: 3 to 6 characters. ‘‘Latitude’’, this parameter stamps records issued ID for support personnel accounts. Data Format: First character: [<‘¥’> or requiring a position attribute with a reference Used in: ELD account profile(s); ELD <{blank}>]; then [ or ]; then <‘.’>; point on the face of the earth. outputs (display and file). then [ or ]. Source: ELD’s position measurement. Data Type: Entered (during the creation of Disposition: Mandatory. Used in: ELD events; ELD outputs. a new ELD account). Data Type: Latitude and Longitude must be Examples: [¥15.68], [38.89], [5.07], Data Range: Any alphanumeric ¥ ¥ ¥ automatically captured by the ELD. combination. [ 6.11], [ 15.7], [38.9], [5.1], [ 6.1]. Data Range: ¥179.99 to 180.00 in decimal Data Length: Minimum: 2; Maximum: 30 7.32. Line Data Check Value degrees (two decimal point resolution) in characters. records using conventional positioning Data Format: as in to Description: A hexadecimal ‘‘check’’ value precision; ¥179.9 to 180.0 in decimal . calculated in accordance with procedure degrees (single decimal point resolution) in Disposition: Mandatory for all accounts outlined in section 4.4.5.2 and attached to records using reduced positioning precision created on the ELD. each line of output featuring data at the time when allowed; longitudes east of the prime Example: [Smith]. of output file being generated. meridian must be specified by the absence of Purpose: Provides ability to identify cases a minus sign (¥) preceding the digits 7.31. Latitude where an ELD output file may have been designating degrees of longitude; longitudes Description: An angular distance in degrees inappropriately modified after its original west of the prime meridian must be north and south of the equator. generation. designated by minus sign (¥) preceding the Purpose: In combination with the variable Source: ELD internal. digits designating degrees. ‘‘Longitude’’, this parameter stamps records Used in: ELD output file. Data Length: 3 to 7 characters. ¥ requiring a position attribute with a reference Data Type: Calculated by the ELD in Data Format: First character: [<‘ ’> or point on the face of the earth. { } accordance with 4.4.5.2. < blank >]; then [, or ]; then Source: ELD’s position measurement. <‘.’>; then [ or ]. Data Range: A number between Used in: ELD events; ELD outputs. Disposition: Mandatory. Data Type: Latitude and Longitude must be hexadecimal 00 (decimal 0) and hexadecimal Examples: [¥157.81], [¥77.03], [9.05], automatically captured by the ELD. FF (decimal 255) . [¥0.15], [¥157.8], [¥77.0], [9.1], [¥0.2]. Data Range: ¥90.00 to 90.00 in decimal Data Length: 2 characters. degrees (two decimal point resolution) in Data Format: as 7.34. Malfunction/Diagnostic Code records using conventional positioning in . Description: A code that further specifies precision; ¥90.0 to 90.0 in decimal degrees Disposition: Mandatory. the underlying malfunction or data (single decimal point resolution) in records Examples: [01], [A4], [CC]. diagnostic event.

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Purpose: Enables coding the type of created ELD output file; An authorized safety ‘‘HH’’ refers to hours of the day, ‘‘MM’’ refers malfunction and data diagnostic event to official may provide a key phrase or code to to minutes, and ‘‘SS’’ refers to seconds. cover the standardized set in Table 4 of this be included in the output file comment, Data Length: 6 characters. appendix. which may be used to link the requested data Data Format: where Source: ELD internal monitoring. to an inspection, inquiry, or other must be between 00 and 23, and Used in: ELD events; ELD outputs. enforcement action; if provided to the driver must be between 00 and 59. Data Type: Recorded by ELD when by an authorized safety official, it must be Disposition: Mandatory. malfunctions and data diagnostic events are entered into the ELD and included in the Examples: {070111}, {001259}, {151522}, set or reset. exchanged dataset as specified. {230945}. Data Range: As specified in Table 4 of this Purpose: The output file comment field appendix. provides an ability to link submitted data to 7.41. Time Zone Offset from UTC Data Length: 1 character. an inspection, inquiry, or other enforcement Description: This data element refers to the Data Format: . action, if deemed necessary; further, it may offset in time between UTC time and the time Disposition: Mandatory. also link a dataset to a vehicle, driver, carrier, standard in effect at the driver’s home Examples: [1], [5], [P], [L]. and/or ELD that may participate in voluntary terminal. Purpose: Establishes the ability to link 7.35. Malfunction Indicator Status future programs that may involve exchange of ELD data. records stamped with local time to a Description: This is a Boolean indicator Source: Enforcement personnel or driver or universal reference. identifying whether the used ELD unit has an motor carrier. Source: Calculated from measured variable active malfunction set at the time of event Used in: ELD outputs. <{UTC} Time> and <{Time Standard in recording. Data Type: If provided, output file Effect at driver’s home terminal} Time>; Purpose: Documents the snapshot of ELD’s comment is entered or appended to the ELD Maintained together with ‘‘24-hour Period malfunction status at the time of an event dataset prior to submission of ELD data to Starting Time’’ parameter by the motor recording. enforcement. carrier or tracked automatically by ELD. Source: ELD internal monitoring functions. Data Range: Blank or any alphanumeric Used in: ELD account profile; ELD event: Used in: ELD events; ELD outputs. combination specified and provided by an Driver’s certification of own records. Data Type: Internally monitored and authorized safety official. Data Type: Programmed or populated on managed. Data Length: 0–60 characters. the ELD during account creation and Data Range: 0 (no active malfunction) or 1 Data Format: <{blank}>, or thru maintained by the motor carrier or ELD to (at least one active malfunction). . reflect true and accurate information for Data Length: 1 character. Disposition: Mandatory. drivers. This parameter must adjust for Data Format: as in . [113G1EFW02], [7353930]. driver’s home terminal. Disposition: Mandatory. Data Range: 04 to 11; omit sign. Examples: [0] or [1]. 7.39. Shipping Document Number Data Length: 2 characters. 7.36. Multiday Basis Used Description: Shipping document number Data Format: as in where ‘‘HH’’ refer to hours Description: This data element refers to the dispatch documents. in difference. multiday basis (7 or 8 days) used by the Purpose: Links ELD data to the shipping Disposition: Mandatory. motor carrier to compute cumulative duty records; makes ELD dataset consistent with Examples: {04}, {05}, {10}. hours. § Purpose: Provides ability to apply the HOS 395.8 requirements. 7.42. Trailer Number(s) rules accordingly. Source: Motor carrier. Used in: ELD outputs. Description: This data element refers to the Source: Motor carrier. identifier(s) the motor carrier uses for the Used in: ELD account profile; ELD outputs. Data Type: Entered in the ELD by the authenticated driver or motor carrier and trailers in their normal course of business. Data Type: Entered by the motor carrier Purpose: Identifies the trailer(s) a driver during account creation process. verified by the driver. Data Range: Any alphanumeric operates while a driver’s ELD records are Data Range: 7 or 8. recorded; makes ELD records consistent with Data Length: 1 character. combination. Data Length: 0–40 characters. § 395.8 which requires the trailer number(s) Data Format: as in { } to be included on the form. . Data Format: < blank >, or thru . Source: Unique trailer identifiers a motor Disposition: Mandatory. carrier uses in their normal course of Examples: [7], [8]. Disposition: Mandatory if a shipping number is used on motor carrier’s system. business and includes on dispatch 7.37. Order Number Examples: [], [B 75354], [FX334411707]. documents, or the license number and licensing State of each towed unit; trailer Description: A continuous integer number 7.40. Time number(s) must be updated each time hauled assigned in the forming of a list, starting at trailers change. 1 and incremented by 1 for each unique item Description: In combination with the Data Type: Automatically captured by the on the list. variable ‘‘Date’’, this parameter stamps ELD or populated by motor carrier’s extended Purpose: Allows for more compact report records with a reference in time; even though ELD system or entered by the driver; must be file output generation avoiding repetitious date and time must be captured in UTC, use of CMV identifiers and usernames event records must use date and time updated each time the hauled trailer(s) affected in records. converted to the time zone in effect at the change. Source: ELD internal. driver’s home terminal as specified in section Data Range: Any alphanumeric Used in: ELD outputs, listing of users and 4.4.3 of this appendix. combination. CMVs referenced in ELD logs. Purpose: Provides ability to record the Data Length: Minimum: blank; Maximum: Data Type: Managed by ELD. instance of recorded events. 32 characters (3 trailer numbers each Data Range: Integer between 1 and 99. Source: ELD’s converted time maximum 10 characters long, separated by Data Length: 1–2 characters. measurement. spaces). Data Format: as in Used in: ELD events; ELD outputs. Data Format: Trailer numbers; separated or . Data Type: UTC time must be by space in case of multiple trailers hauled Disposition: Mandatory. automatically captured by ELD; time in effect at one time; field to be left ‘‘blank’’ for non- Examples: [1], [5], [11], [28]. at the driver’s home terminal must be combination vehicles (such as a straight truck calculated as specified in section 4.4.3 of this or bobtail tractor). 7.38. Output File Comment appendix. <’ ‘> <’ ‘> format where Number {#3}> as in <{blank}> to

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, which refers to the accumulated <{Accumulated} Vehicle Miles>, range is CCCCCCCCCC>. miles in the given ignition power on cycle between 0 and 9,999. Disposition: Mandatory when operating and is used in the recording of all other Data Length: 1–7 characters. combination vehicles. events. Data Format: as in to Examples: {987}, {00987 PP2345}, {BX987 Purpose: Provides ability to track distance . POP712 10567}, {TX12345 LA22A21}. traveled while operating the CMV in each Disposition: Mandatory. duty status. Total miles traveled within a 24- Examples: [99], [1004566], [0], [422]. 7.43. Vehicle Miles hour period is a required field in § 395.8. Description: This data element refers to the Source: ELD measurement or sensing. Issued under authority delegated in 49 CFR distance traveled using the CMV in whole Used in: ELD events; ELD outputs. 1.87 on: November 23, 2015. miles; this parameter is a placeholder for Data Type: Acquired from the engine ECM T.F. Scott Darling, III, <{Total} Vehicle Miles>, which refers to the or a comparable other source as allowed in Acting Administrator. odometer reading and is used in recording section 4.3.1.3. ‘‘engine power on’’ and ‘‘engine shut down’’ Data Range: For <{Total} Vehicle Miles>, [FR Doc. 2015–31336 Filed 12–10–15; 4:15 pm] events, and also for <{Accumulated} Vehicle range is between 0 and 9,999,999; for BILLING CODE 4910–EX–P

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