[Federal Register Volume 75, Number 64 (Monday, April 5, 2010)]
[Rules and Regulations]
[Pages 17208-17252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6747]
[[Page 17207]]
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Part II
Department of Transportation
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Federal Motor Carrier Safety Administration
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49 CFR Parts 350, 385, 395, et al.
Electronic On-Board Recorders for Hours-of-Service Compliance; Final
Rule
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules
and Regulations
[[Page 17208]]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 350, 385, 395, and 396
[Docket No. FMCSA-2004-18940]
RIN 2126-AA89
Electronic On-Board Recorders for Hours-of-Service Compliance
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) amends
the Federal Motor Carrier Safety Regulations (FMCSRs) to incorporate
new performance standards for electronic on-board recorders (EOBRs)
installed in commercial motor vehicles (CMVs) manufactured on or after
June 4, 2012. On-board hours-of-service (HOS) recording devices meeting
FMCSA's current requirements and installed in CMVs manufactured before
June 4, 2012 may continue to be used for the remainder of the service
life of those CMVs.
Motor carriers that have demonstrated serious noncompliance with
the HOS rules will be subject to mandatory installation of EOBRs
meeting the new performance standards. If FMCSA determines, based on
HOS records reviewed during a compliance review, that a motor carrier
has a 10 percent or greater violation rate (``threshold rate
violation'') for any HOS regulation listed in the new Appendix C to
part 385, FMCSA will issue the carrier an EOBR remedial directive. The
motor carrier will then be required to install EOBRs in all of its CMVs
regardless of their date of manufacture and use the devices for HOS
recordkeeping for a period of 2 years, unless the carrier (i) already
equipped its vehicles with automatic on-board recording devices
(AOBRDs) meeting the Agency's current requirements under 49 CFR 395.15
prior to the finding, and (ii) demonstrates to FMCSA that its drivers
understand how to use the devices.
The FMCSA also changes the safety fitness standard to take into
account a remedial directive when determining fitness. Additionally, to
encourage industry-wide use of EOBRs, FMCSA revises its compliance
review procedures to permit examination of a random sample of drivers'
records of duty status after the initial sampling, and provides partial
relief from HOS supporting documents requirements, if certain
conditions are satisfied, for motor carriers that voluntarily use
compliant EOBRs.
Finally, because FMCSA recognizes that the potential safety risks
associated with some motor carrier categories, such as passenger
carriers, hazardous materials transporters, and new motor carriers
seeking authority to conduct interstate operations in the United
States, are such that mandatory EOBR use for such operations might be
appropriate, the Agency will initiate a new rulemaking to consider
expanding the scope of mandatory EOBR use beyond the ``1 x 10''
carriers that would be subject to a remedial directive as a result of
today's rule.
DATES: Effective Date: This final rule is effective on June 4, 2010.
Compliance Date: Motor carriers must comply with this final rule by
June 4, 2012. The incorporation by reference of certain publications
listed in the rule is approved by the Director of the Federal Register
as of June 4, 2010.
ADDRESSES:
Docket: For access to the docket to read background documents
including those referenced in this document, or to read comments
received, go to http://www.regulations.gov at any time or to the ground
floor, room W12-140, DOT Building, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday,
except Federal holidays.
Privacy Act: Anyone is able to search the electronic form for all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review U.S.
Department of Transportation's (DOT) complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19476) or you
may visit http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and
Roadside Operations Division, Office of Bus and Truck Standards and
Operations, (202) 366-5370, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION: This rulemaking notice is organized as
follows:
Table of Contents
I. Table of Abbreviations
II. Legal Basis for the Rulemaking
III. Executive Summary
IV. Discussion of Comments to the Notice of Proposed Rulemaking
V. Rulemaking Analyses and Notices
I. Table of Abbreviations
Following is a list of abbreviations used in this document.
Advocates Advocates for Highway and Auto Safety
AMSA American Moving and Storage Association
ANPRM Advance Notice of Proposed Rulemaking
ANSI American National Standards Institute
AOBRDS Automatic On-Board Recording Devices
ASCII American Standard Code for Information Interchange
ATA American Trucking Associations
ATRI American Transportation Research Institute
Boyle Boyle Transportation
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
CR Compliance Review
CSA 2010 Comprehensive Safety Analysis 2010
CVSA Commercial Vehicle Safety Alliance
D Driving
DOE U.S. Department of Energy
DOT U.S. Department of Transportation
EA Environmental Assessment
ECM Electronic Control Module
E.O. Executive Order
EOBR Electronic On-Board Recorder
EU European Union
FedEx FedEx Corporation
FHWA Federal Highway Administration
FIPS Publications Federal Information Processing Standards
Publications
FMCSA Federal Motor Carrier Safety Administration
FMCSR Federal Motor Carrier Safety Regulations
FMI Food Marketing Institute
FOIA Freedom of Information Act
FONSI Finding of No Significant Impact
FR Federal Register
GAO Government Accountability Office
GNIS Geographic Names Information System
GPS Global Positioning System
Hazmat Hazardous Materials
HMTAA Hazardous Materials Transportation Authorization Act of 1994
HOS Hours of Service
IBT International Brotherhood of Teamsters
ICC Interstate Commerce Commission
ICCTA ICC Termination Act of 1995
ICR Information Collection Request
IEEE Institute of Electrical and Electronic Engineers
IIHS Insurance Institute for Highway Safety
IRFA Initial Regulatory Flexibility Analysis
ITEC International Truck and Engine Corporation
J.B. Hunt J.B. Hunt Transport, Inc.
KonaWare KonaWare Transportation and Logistics
LH Long Haul
Maryland SHA Maryland State Highway Administration
Maverick Maverick Transportation, LLC
MCMIS Motor Carrier Management Information System
MCSAP Motor Carrier Safety Assistance Program
MCSIA Motor Carrier Safety Improvement Act of 1999
[[Page 17209]]
MTA Minnesota Trucking Association
NEPA National Environmental Policy Act
NHTSA National Highway Traffic Safety Administration
1984 Act Motor Carrier Safety Act of 1984
1935 Act Motor Carrier Act of 1935
NPGA National Propane Gas Association
NPRDA Notice of Potential Remedial Directive Applicability
NPRM Notice of Proposed Rulemaking
NPTC National Private Truck Council, Incorporated
NTSB National Transportation Safety Board
NRMCA National Ready Mixed Concrete Association
OBD On-Board Diagnostic
ODND On Duty Not Driving
OFF Off Duty
Ohio PUC Public Utilities Commission of Ohio
OIG Office of the Inspector General
OMB Office of Management and Budget
ON On Duty
OOIDA Owner-Operator Independent Drivers Association, Inc.
PDA Personal Digital Assistant
PII Personally Identifiable Information
PIA Privacy Impact Assessment
PMAA Petroleum Marketers Association of America
PRA Paperwork Reduction Act of 1995
Pub. L. Public Law
Qualcomm Qualcomm Wireless Business Solutions
RapidLog RapidLog Corporation
RF Radio Frequency
RIA Regulatory Impact Analysis
RITA Research and Innovative Technology Administration
RODS Records of Duty Status
RP Recommended Practice
SafeStat Motor Carrier Safety Status Measuring System
SAFETEA-LU Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users
SB Sleeper Berth
SBA Small Business Association
SC&RA Specialized Carriers & Rigging Association
SEA Safety Evaluation Area
SEISNOSE Significant Economic Impact on a Substantial Number of
Small Entities
SFRM Safety Fitness Rating Methodology
SH Short Haul
Siemens Siemens AG
SNPRM Supplemental Notice of Proposed Rulemaking
Stat. Statutes
TCA Truckload Carriers Association
TEA-21 Transportation Equity Act for the 21st Century
TMC TPA Technology and Maintenance Council's Technical Policy
Advisory Tripmaster Tripmaster Corporation
UMTRI University of Michigan Transportation Institute
U.S.C. United States Code
UTC Coordinated Universal Time
Verigo Verigo Incorporated
VSL Value of a Statistical Life
Werner Werner Enterprises, Incorporated
XATA XATA Corporation
Xora Xora, Incorporated
II. Legal Basis for the Rulemaking
The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, August
9, 1935, now codified at 49 U.S.C. 31502(b)) (the 1935 Act) provides
``the Secretary of Transportation may prescribe requirements for (1)
qualifications and maximum hours of service of employees of, and safety
of operation and equipment of, a motor carrier; and (2) qualifications
and maximum hours of service of employees of, and standards of
equipment of, a motor private carrier, when needed to promote safety of
operation.'' This final rule addresses ``safety of operation and
equipment'' of motor carriers and ``standards of equipment'' of motor
private carriers and, as such, is well within the authority of the 1935
Act. Today's final rule allows motor carriers to use Electronic On-
Board Recorders (EOBRs) in their commercial motor vehicles (CMVs) to
document drivers' compliance with the HOS requirements; requires some
noncompliant carriers to install, use, and maintain EOBRs for this
purpose; and updates existing performance standards for on-board
recording devices.
The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98
Stat. 2832, October 30, 1984) (the 1984 Act) provides concurrent
authority to regulate drivers, motor carriers, and vehicle equipment.
It requires the Secretary to ``prescribe regulations on commercial
motor vehicle safety. The regulations shall prescribe minimum safety
standards for commercial motor vehicles. At a minimum, the regulations
shall ensure that--(1) Commercial motor vehicles are maintained,
equipped, loaded, and operated safely; (2) the responsibilities imposed
on operators of commercial motor vehicles do not impair their ability
to operate the vehicles safely; (3) the physical condition of operators
of commercial motor vehicles is adequate to enable them to operate the
vehicles safely * * *; and (4) the operation of commercial motor
vehicles does not have a deleterious effect on the physical condition
of the operators'' (49 U.S.C. 31136(a)).
Section 211(b) of the 1984 Act also grants the Secretary broad
power, in carrying out motor carrier safety statutes and regulations,
to ``prescribe recordkeeping and reporting requirements'' and to
``perform other acts the Secretary considers appropriate'' (49 U.S.C.
31133(a)(8) and (10)).
The HOS regulations are designed to ensure that driving time--one
of the principal ``responsibilities imposed on operators of commercial
motor vehicles''--does ``not impair their ability to operate the
vehicles safely.'' (49 U.S.C. 31136(a)(2)). EOBRs that are properly
designed, used, and maintained will enable motor carriers to track
their drivers' on-duty driving hours accurately, thus minimizing
regulatory violations or excessive driving, and schedule vehicle and
driver operations more efficiently. Driver compliance with the HOS
rules helps ensure ``the physical condition of operators of commercial
motor vehicles is adequate to enable them to operate the vehicles
safely'' (49 U.S.C. 31136(a)(3)). To assist in the enforcement of the
HOS regulations generally, FMCSA is requiring EOBR use by motor
carriers with the most serious HOS compliance deficiencies (``threshold
rate violations''), as described elsewhere in this final rule. The
Agency considered whether this final rule would impact driver health
under 49 U.S.C. 31136(a)(3) and (a)(4). To the extent the final rule
has any effect on the physical condition of drivers, because the rule
is expected to increase compliance with the HOS regulations the effect
is unlikely to be deleterious. (See the discussion regarding health
impacts at section 8.4. and Appendix A in the Environmental Assessment
(EA).)
The requirements in 49 U.S.C. 31136(a)(1) concerning safe motor
vehicle maintenance, equipment, and loading are not germane to this
final rule, as EOBRs influence driver operational safety rather than
vehicular and mechanical safety. Consequently, the Agency has not
explicitly assessed the final rule against that requirement. However,
to the limited extent 49 U.S.C. 31136(a)(1) pertains specifically to
driver safety and safe operation of commercial vehicles, the Agency has
taken this statutory requirement into account throughout the final
rule. Also, before prescribing any regulations, FMCSA must also
consider their ``costs and benefits.'' (49 U.S.C. 31136 (c)(2)(A) and
31502(d)). The Agency has taken these statutory requirements into
account throughout the final rule.
In addition, section 408 of the ICC Termination Act of 1995 (Pub.
L. 104-88, 109 Stat. 803, 958, December 29, 1995) (ICCTA) requires the
Agency to issue an advance notice of proposed rulemaking (ANPRM)
``dealing with a variety of fatigue-related issues pertaining to
commercial motor vehicle safety (including * * * automated and tamper-
proof recording devices * * *) not later than March 1, 1996.'' The
original ANPRM under section 408 of ICCTA was published on November 5,
[[Page 17210]]
1996 (61 FR 57252), the notice of proposed rulemaking (NPRM) on May 2,
2000 (65 FR 25540), and the final rule on April 28, 2003 (68 FR 22456).
For a number of reasons, including lack of adequate cost and benefit
data, FMCSA decided not to adopt EOBR regulations in 2003. FMCSA noted,
however, that it planned ``to continue research on EOBRs and other
technologies, seeking to stimulate innovation in this promising area''
(68 FR 22456, 22488, April 28, 2003).
Section 113(a) of the Hazardous Materials Transportation
Authorization Act of 1994 (Pub. L. 103-311, 108 Stat. 1673, 1676,
August 26, 1994) (HMTAA) required the Secretary to prescribe
regulations to improve (A) compliance by commercial motor vehicle
drivers and motor carriers with HOS requirements; and (B) the
effectiveness and efficiency of Federal and State enforcement officers
reviewing such compliance. HMTAA section 113(b)(1) states that such
regulations must allow for a written or electronic document ``* * * to
be used by a motor carrier or by an enforcement officer as a supporting
document to verify the accuracy of a driver's record of duty status.''
Today's rule sets forth performance standards, incentives measures, and
remedial requirements for use of devices that generate electronic
documents, and addresses the HMTAA mandate.
Section 9104 of the Truck and Bus Safety and Regulatory Reform Act
(Pub. L. 100-690, title IX, subtitle B, 102 Stat. 4181, 4529, November
18, 1988) also anticipates the Secretary prescribing ``a regulation
about the use of monitoring devices on commercial motor vehicles to
increase compliance by operators of the vehicles with HOS
regulations,'' and requires the Agency to ensure any such device is not
used to ``harass vehicle operators'' (49 U.S.C. 31137(a)). Section 4012
of the Transportation Equity Act for the 21st Century (Pub. L. 105-
178), 112 Stat. 107, 408-409, June 9, 1998) (TEA-21) makes inapplicable
to drivers of utility service vehicles, during an emergency period of
not more than 30 days, regulations issued under 49 U.S.C. 31502 or
31136 regarding ``the installation of automatic recording devices
associated with establishing the maximum driving and on-duty times''
(49 U.S.C. 31502(e)(1)(C)). The Agency has taken these statutory
requirements into account throughout the final rule.
Based on the legislative framework reviewed previously, FMCSA has
statutory authority to adopt an industry-wide requirement that all
motor carriers subject to HOS requirements under 49 CFR part 395
install and use EOBR-based systems. The Agency has adopted a more
targeted approach in this final rule, consistent with the scope of the
NPRM which limits the current rulemaking proceeding to compliance-based
regulatory approaches implemented through a remedial directive.
However, the Agency will publish a separate notice initiating a new
rulemaking in the near future to consider expanding the scope of
mandatory EOBR use beyond the standard set in this rule, consistent
with its full authority and based upon new data and analyses.
In this final rule, the Agency establishes criteria for identifying
carriers with threshold rates of HOS violations. We also establish
changes to the safety fitness standard to ensure imposition of a
remedial directive to install, use and maintain EOBRs is taken into
account when determining a carrier's safety fitness.
The determination of a carrier's safety fitness is well within the
Secretary's authority. Section 215 of the 1984 Act requires the
Secretary to ``determine whether an owner or operator is fit to operate
safely commercial motor vehicles,'' (49 U.S.C. 31144(a)(1)) and to
``maintain by regulation a procedure for determining the safety fitness
of an owner or operator'' (49 U.S.C. 31144(b)). The procedure must
include ``specific initial and continuing requirements with which an
owner or operator must comply to demonstrate safety fitness'' (49
U.S.C. 31144(b)(1)).
Section 4009 of TEA-21 prohibits motor carriers found to be unfit,
according to a safety fitness determination, from operating commercial
motor vehicles in interstate commerce. With limited exceptions, owners
and operators determined to be unfit may not operate commercial motor
vehicles in interstate commerce beginning on the 61st day after the
date of such fitness determination, or the 46th day after such
determination in the case of carriers transporting passengers or
hazardous materials, ``and until the Secretary determines such owner or
operator is fit'' (49 U.S.C. 31144(c)).
Section 4104 of the Safe, Accountable, Flexible, Efficient
Transportation Act: A Legacy for Users (Pub. L. 109-59, 119 Stat. 1144,
August 10, 2005) (SAFETEA-LU) directs FMCSA to revoke the registration
of a motor carrier that has been prohibited from operating in
interstate commerce for failure to comply with the safety fitness
requirements of 49 U.S.C. 31144. Section 4114(b) of SAFETEA-LU expands
FMCSA jurisdiction into intrastate operations by amending 49 U.S.C.
31144(c) to further prohibit owners or operators of CMVs prohibited
from operating in interstate commerce because FMCSA has determined they
do not meet the safety fitness requirement, from operating any CMV that
affects interstate commerce until the Secretary determines that such
owner or operator is fit.
III. Executive Summary
In its January 18, 2007 NPRM (72 FR 2340), FMCSA proposed three
related elements to address on-board electronic devices for recording
HOS information: (1) An updated equipment standard in light of
technological advances; (2) mandated use of EOBRs for motor carriers
that demonstrated a history of severe noncompliance with the HOS
regulations; and (3) certain incentives to encourage EOBR use by all
motor carriers. The second element, concerning the mandated use of
EOBRs, was of greatest concern to commenters.
The FMCSA acknowledges the safety concerns of Congress, the
National Transportation Safety Board (NTSB), and the many organizations
and individuals that submitted comments to the NPRM in support of a
broader EOBR mandate. The Agency has begun work to evaluate regulatory
options for significantly expanding the population of carriers covered
by an EOBR mandate.
However, the Agency cannot extend the EOBR mandate beyond those
covered by this final rule because the scope of the current rulemaking
proceeding is limited to compliance-based regulatory approaches,
implemented through a remedial directive. Therefore, FMCSA will examine
the issue of a broader mandate under a new rulemaking proceeding in
response to the safety concerns raised by Congress, the NTSB, and
commenters to the docket.
As part of this activity, FMCSA also intends to gather more
information on the voluntary use of EOBRs and to assess how increases
in the number of units installed are influencing the costs of purchase
and operation.
In the meantime, focusing on motor carriers with significant HOS
compliance problems is likely to improve the safety of the motoring
public on the highways in the near term. Consistent with the scope of
the NPRM, we are therefore adopting procedures for issuance of remedial
directives requiring EOBR installation, maintenance, and use by those
motor carriers with serious HOS noncompliance.
As discussed in the EOBR Remedial Directives section of this
preamble, FMCSA examined a variety of
[[Page 17211]]
parameters that might be used to establish subpopulations of motor
carriers with poor HOS compliance to which an EOBR mandate might apply.
In focusing on the most severe violations and the most chronic
violators, we are adopting a mandatory-installation ``trigger''
designed to single out motor carriers that have a demonstrated record
of poor compliance with HOS regulations. In today's rule, as proposed
in the NPRM, we adopt an EOBR mandatory-use requirement with a
compliance-based trigger. It applies to motor carriers across all
sectors that have demonstrated poor compliance with the HOS
regulations. The NPRM details the history of this rulemaking and the
alternatives considered (72 FR 2343).
Previously, an Agency proposal to mandate EOBRs for CMVs used in
long-haul and regional operations was withdrawn (68 FR 22456, Apr. 28,
2003). The 2004 ANPRM (69 FR 53386) invited comment on a sector-based
mandate (e.g., long-haul carriers only). FMCSA considered such broader
mandates and discussed them again in the NPRM, although they were not
ultimately pursued as regulatory options. Instead, the NPRM focused on
which remedial directive option to adopt (72 FR 2372-2374).
The Agency proposed mandating EOBR installation, maintenance, and
use for a relatively small population of companies and drivers with a
recurrent HOS compliance problem. EOBRs would be required for those
carriers determined--based on HOS records reviewed during each of two
compliance reviews conducted within a 2-year period--to have had a 10
percent or greater violation rate (``pattern violation'') for any
regulation in the proposed Appendix C to 49 CFR part 385 (``2 x 10''
Remedial Directive Carriers). As described in more detail in this
preamble, in the final rule the Agency has chosen the more stringent 1
x 10 remedial approach--whereby motor carriers with a 10 percent
violation rate of any Appendix C HOS regulation in any single
compliance review would be subject to a remedial directive (``1 x 10''
Remedial Directive Carriers)--instead of the 2 x 10 approach proposed
in the NPRM.
In the development of this final rule, the Agency found the overall
crash rates of 1 x 10 and 2 x 10 motor carriers are considerably higher
than the crash rates of the general motor carrier population. Using
data from the FMCSA Motor Carrier Management Information System (MCMIS)
database and compliance review databases, crash rates were computed by
dividing total crashes by each carrier's number of power units. Crash
rates were compared between the 1 x 10 and 2 x 10 motor carrier
population and motor carriers in the general population. The 1 x 10
motor carriers were found to have a 40 percent higher crash rate than
the general motor carrier population, and 2 x 10 motor carriers a 90
percent higher crash rate than the general motor carrier population.
Many elements of the analyses of benefits and costs of this rule use
estimates that were derived from FMCSA's 2003 estimates concerning the
effects of HOS rules. This was done to provide analytical continuity
through the 2004-2010 timeframe of the EOBR rulemaking actions.\1\
Also, due to data limitation, FMCSA used outdated studies in the
analysis for this rule. For future HOS rulemakings, FMCSA will use
updated studies and reports to analyze impacts.
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\1\ Estimates of benefits and costs that will be developed for
future HOS-related rulemaking actions will use more recent baseline
data.
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Numerous commenters to the NPRM stated that the proposal still
would not require EOBR use by enough carriers to make a meaningful
difference in highway safety, relative to the total carrier population.
The FMCSA acknowledges the safety concerns of the commenters. In
response to those concerns, the Agency will explore the safety benefits
of a broader EOBR mandate in a new rulemaking proceeding that will
begin in the near future. In the meantime, the final rule's application
of a remedial directive to the 1 x 10 motor carriers makes the best
immediate use of Agency resources and provides immediate safety
benefits to society.
The number of motor carriers that will be required to install, use
and maintain EOBRs is significantly greater under this final rule than
was proposed in the NPRM. If FMCSA determines, based on HOS records
reviewed during a single compliance review, that a motor carrier had a
10 percent or greater violation rate for any regulation in the new
Appendix C to Part 385 (``threshold rate violation''), FMCSA will issue
the carrier an EOBR remedial directive. The motor carrier will be
required to install EOBRs meeting the performance requirements of this
final rule in all of the carrier's CMVs, regardless of their date of
manufacture, and to use the devices for HOS recordkeeping purposes for
a period of 2 years. An exception is provided for carriers that, prior
to the compliance review determination, already equipped their vehicles
with automatic on-board recording devices (AOBRDs) meeting the Agency's
current requirements under 49 CFR 395.15 and can demonstrate to FMCSA
that their drivers understand how to use the devices.
FMCSA amends the FMCSRs to provide new performance requirements for
EOBRs used to monitor drivers' HOS recording devices. EOBRs will be
required to automatically record the CMV's location at each change of
duty status and at intervals while the CMV is in motion. Current on-
board recorders are not required to do this. EOBRs must also conform to
specific information processing standards to ensure the security and
integrity of the data that is recorded. Drivers will be able to add
information to the EOBR record (``annotate'') while the EOBR maintains
the original recorded information and tracks these annotations. The
EOBR support system must be able to provide a digital file in a
specified format for use by motor carrier safety enforcement officials.
FMCSA requires on-board recording devices be integrally
synchronized to the engine. Although the January 2007 NPRM proposed
allowing non-synchronized devices, the Agency decided to continue
requiring that on-board recording devices be integrally synchronized to
ensure the accuracy of electronic records of duty status.
The Agency also adopts other performance specifications, in
response to comments that differ from specifications proposed. These
include, but are not limited to: Increasing the time interval for
recording the geographic location of a CMV in motion from 1 minute to
60 minutes; making the recording of State-line-crossing information
optional; removing the requirement to record a driver's acknowledgement
of advisory messages; reducing the amount of time a CMV is stationary
before the EOBR defaults to on-duty not driving duty status; removing
the daily ceiling on EOBR accumulated time inaccuracy or ``time
drift''; revising the requirements to allow a driver to enter
annotations to denote use of a CMV as a personal conveyance and for
yard movement; removing the requirement for an EOBR to display HOS data
in a graph-grid format; specifying information technology security and
integrity requirements; and adding and strengthening provisions
concerning driver and motor carrier responsibilities relating to
accurate EOBR records and support system performance. The details of
the changes are discussed later in this document.
To ensure a smooth transition from AOBRDs to EOBRs, the final rule
requires that for CMVs manufactured
[[Page 17212]]
after June 4, 2012, devices installed by a manufacturer or motor
carrier to record HOS must meet the requirements of Sec. 395.16.
Commercial motor vehicles manufactured prior to June 4, 2012 may be
equipped with an HOS recording device that meets the requirements of
either Sec. 395.15 (AOBRD) or Sec. 395.16 (EOBR).
Finally, the final rule provides incentives for motor carriers to
voluntarily use EOBRs. These include elimination of the requirement to
retain and maintain supporting documents related to driving time as
this information will be maintained and accessible from the EOBR.
Additionally, compliance reviews that reveal a proposed 10 percent or
higher violation rate based on the initial focused sample would be
expanded to assess a random sampling of the motor carrier's overall HOS
records.
Summary of FMCSA's January 2007 Proposal
On January 18, 2007, FMCSA proposed amending the FMCSRs to
incorporate new performance standards for EOBRs installed in commercial
motor vehicles manufactured on or after the date 2 years following the
effective date of a final rule. On-board HOS recording devices meeting
FMCSA's current requirements and voluntarily installed in CMVs
manufactured before the implementation date of a final rule will be
permitted for use for the remainder of the service life of those CMVs.
Under the proposal, motor carriers that demonstrated a pattern of
serious noncompliance with FMCSA's HOS rules would be subject to
mandatory installation of EOBRs meeting the new performance standards.
If FMCSA determined, based on HOS records reviewed during each of two
compliance reviews conducted within a 2-year period, that a motor
carrier had a 10 percent or greater violation rate (``pattern
violation'') for any regulation in proposed Appendix C to part 385 of
Title 49, CFR, FMCSA would issue the carrier an EOBR remedial
directive. The motor carrier would be required to install EOBRs in all
of its CMVs regardless of their date of manufacture and to use the
devices for HOS recordkeeping for a period of 2 years, unless the
carrier already had equipped its vehicles with AOBRDs meeting the
Agency's current requirements under 49 CFR 395.15 and could demonstrate
to FMCSA that its drivers understand how to use the devices.
We also proposed changes to the safety fitness standard to ensure
imposition of a remedial directive to install, use and maintain EOBRs
as taken into account when determining a carrier's safety fitness.
Finally, FMCSA proposed the same incentives for motor carriers to
voluntarily use EOBRs in their CMVs as are adopted in today's final
rule: (1) Random sampling of drivers' records of duty status; and (2)
partial relief from HOS supporting documents requirements.
IV. Discussion of Comments to the NPRM
Overview of Comments
The Agency received 752 comments on the proposed rule. Of these,
609 expressed opinions without additional supporting material.
Organizations that provided comments included the following.
Safety advocacy groups: Advocates for Highway and Auto Safety
(Advocates); Public Citizen; and Insurance Institute for Highway Safety
(IIHS).
Drivers' organizations: International Brotherhood of Teamsters
(IBT) and Owner-Operator Independent Drivers Association, Inc. (OOIDA).
National trucking industry associations: Canadian Trucking
Alliance; Truckload Carriers Association (TCA); American Trucking
Associations (ATA); National Private Truck Council, Inc. (NPTC); the
Specialized Carriers & Rigging Association (SC&RA), and the American
Moving and Storage Association (AMSA). Additionally, although several
commenters referenced a Technical Policy Advisory (TPA) developed by
the ATA Technology and Maintenance Council (TMC), TMC did not comment
independently to the docket.
State trucking associations: Minnesota Trucking Association (MTA).
EOBR, software, and system providers: RapidLog Corp. (RapidLog);
PeopleNet; Siemens AG (Siemens); Tripmaster Corp. (Tripmaster); Xora,
Inc. (Xora); First Advantage; Verigo Inc. (Verigo); XATA Corp. (XATA);
Qualcomm Wireless Business Solutions (Qualcomm); KonaWare
Transportation and Logistics (KonaWare), and Report on Board.
U.S. Government agencies: National Transportation Safety Board
(NTSB) and the U.S. Department of Energy (DOE).
CMV safety officials' organization: Commercial Vehicle Safety
Alliance (CVSA).
State government agencies: Maryland State Police, Maryland State
Highway Administration (Maryland SHA), and Public Utilities Commission
of Ohio (Ohio PUC).
Motor carriers: J.B. Hunt Transport, Inc. (J.B. Hunt); FedEx Corp.
(FedEx); Werner Enterprises, Inc. (Werner); Calvary Mountain Express
Inc.; River Transport, Inc.; Boyle Transportation (Boyle); OTR
Transportation; Maverick Transportation, LLC (Maverick); Metro Express
Inc.; Brenny Specialized, Inc.; Foreman Transport; Horizontal Boring &
Tunneling Co.; and N&M Transfer Co., Inc.
National associations with transportation interests: International
Foodservice Distributors Association; National Propane Gas Association
(NPGA); National Ready Mixed Concrete Association (NRMCA); Petroleum
Transportation and Storage Association; Petroleum Marketers Association
of America (PMAA); and, the Food Marketing Institute (FMI).
State association with transportation interests: Colorado Ready
Mixed Concrete Association.
CMV manufacturer: International Truck and Engine Corp.
1 Industry-Wide Mandate for EOBRs
FMCSA received 57 comments, mainly from drivers or individuals, who
believe the Agency should require the use of EOBRs. Thirty-nine
commenters supported a broader mandate than was proposed in the NPRM,
though not an industry-wide mandate. Nineteen commenters supported
mandating EOBRs for all carriers.
Advocates commented, ``enforcement efficiencies would soar with
universal use of accurate, tamper-proof EOBRs,'' and argued that the
increased productivity of roadside inspection officials could
significantly improve motor carrier safety. Several commenters,
including CVSA, NTSB, and Public Citizen, asserted European Union
nations, Japan, and other countries that require EOBRs have seen
positive safety results.
Ohio PUC stated a mandate would greatly increase compliance with
the HOS rules, increase safety, and reduce the potential for fraud.
Public Citizen, Advocates, and two vendors stated the proposed rule
did not meet the statutory mandate or individual guidance concerning an
evaluation of EOBRs, and that the administrative record of FMCSA's own
rulemakings contradicted the proposal. They noted the Agency was
required to consider safety as its highest priority and to further the
highest degree of safety in motor carrier transportation.
IIHS stated the proposed rule was ``completely at odds with the
data on truck driver fatigue.'' IIHS cited its research that found that
one in five drivers fell asleep at the wheel in the previous month.
[[Page 17213]]
DOE supported the NPRM, but preferred an industry-wide mandate for
EOBR use to enhance the safety, security and cost effectiveness of the
transportation of hazardous materials. DOE believes installation of
EOBRs on all CMVs would enhance highway safety and HOS compliance of
all motor carriers, including those that DOE uses to transport
shipments of radioactive materials and waste.
Numerous commenters argued that EOBRs are needed to improve safety,
but motor carriers will not voluntarily choose to use EOBRs. In a
related vein, CVSA, NTSB, Siemens, and Report on Board believed a
mandate for all motor carriers to use EOBRs would be necessary to
obtain the customer base and economies of scale for vendors to offer
lower-cost EOBRs.
An individual who identified himself as a safety consultant argued
that motor carriers would not see sufficient advantages--either through
reduced instances of noncompliance or reductions in paperwork burdens--
to encourage them to use EOBRs voluntarily, especially since their
chance of being subjected to a compliance review is low. He stated many
progressive motor carriers have installed onboard systems with Global
Positioning System (GPS) tracking capabilities but do not use them for
HOS recording because drivers object to it. The consultant contended
that by not mandating universal EOBR use, the DOT is, in effect,
rewarding those who are unwilling to invest in safety.
IIHS stated that although AOBRDs have been allowed since 1988 and a
substantial number of motor carriers use various types of on-board
systems, only a small proportion of carriers use them to collect HOS
data. As evidence that many motor carriers find EOBRs affordable and
provide many operational benefits, IIHS cited surveys of truck drivers
indicating about 45 percent of the long-distance drivers in 2005 said
there were EOBRs or other on-board computers in their trucks, up from
about 18 percent in 2003 and about 38 percent in 2004.
Some of the commenters believed a universal EOBR mandate would
create a ``level playing field'' in the motor carrier business
environment. They also stated it would protect drivers from adverse
actions by their employers in retaliation for refusing to violate HOS
regulations. Some of the commenters also mentioned improved readability
and simplified recordkeeping associated with EOBRs when compared to
handwritten records, as well as assisting motor carrier safety
enforcement personnel in performing their roadside reviews more
efficiently and effectively.
Advocates stated FMCSA had ignored potential health impacts of
using EOBRs and improving HOS compliance. It said FMCSA's concern about
the stress on drivers from using EOBRs distorted the research results
of several studies. Furthermore, Advocates held, by not proposing to
mandate EOBR use, the Agency was not helping ``to ameliorate the
adverse health impacts of exceptionally long working and driving hours
triggered by the Agency's final rules in 2003 and in 2005.''
Response: We understand the concerns of ATA and J.B. Hunt, among
others, who believe the proposal did not cover enough carriers. While
FMCSA acknowledges the safety concerns of those that support an
industry-wide EOBR mandate, the Agency cannot extend the EOBR mandate
in that manner in this final rule because the scope of the current
rulemaking proceeding is limited to a compliance-based regulatory
approach, implemented through a remedial directive. However, the number
of motor carriers that will be required to install, use and maintain
EOBRs is significantly greater under this final rule--using the 1 x 10
trigger--than under the 2 x 10 trigger that was proposed in the NPRM.
FMCSA recognizes that the potential safety risks associated with
some motor carrier categories, including passenger carriers, hazardous
materials transporters, and new entrants, are such that mandatory EOBR
use for such populations might be appropriate. However, as noted above,
in today's rule, we adopt a compliance-based trigger that focuses on
all HOS-violating motor carriers across all sectors as proposed in the
NPRM. In addition, as some commenters to the 2007 NPRM docket
indicated, a regulation that promotes voluntary use of EOBRs, but that
does not mandate it for the majority of carriers, will not persuade
many carriers to adopt the devices, even though the devices may
generate improvements in operational productivity. And, as other
commenters noted, a more universal approach to EOBR use may create a
more level playing field in the industry.
As stated earlier in this document, the Agency will initiate a new
rulemaking to consider expanding the scope of mandatory EOBR use beyond
the ``1 x 10'' carriers that will be subject to a remedial directive as
a result of today's rule.
FMCSA acknowledges that some foreign countries have an industry-
wide mandate for HOS recording devices. However, the Agency is not
aware of any published information that demonstrates that the specific
mandate imposed by those countries has contributed to any discernible
benefits in safety. Still, the absence of published information by
those governments should not preclude consideration of that regulatory
option for the U.S. What is clear is certain motor carriers with
threshold rates of serious HOS violations have much higher than average
crash rates, and the mandatory use of EOBRs via a remedial directive
for these high-risk carriers provides a means to compel such carriers
to achieve compliance with the HOS rules.
In terms of the benefits to motor carriers arising from EOBR use,
FMCSA agrees that the savings in collecting, reviewing, and storing
paper-based information alone can make EOBRs (and AOBRDs) attractive to
many motor carriers. Furthermore, advances in information technology
(particularly Web-based applications) and wireless telecommunications
are making HOS monitoring applications--either in stand-alone form or
as part of fleet management systems--far less costly on a per-power-
unit basis than they were in the past.
Until several years ago, many on-board recording systems suppliers
did not serve the small-fleet market, which, according to FMCSA's motor
carrier census, makes up most of the population of motor carriers:
approximately 90 percent of motor carriers operate fewer than 20 power
units. The picture is vastly different today. It is not only more
economical for motor carriers to use on-board recording and monitoring
systems, but there are far more suppliers of these systems to choose
from. Vendors anticipate that customers have a substantial demand that
they can meet, and they are meeting that demand without an FMCSA
mandate. The revised EOBR systems cost estimates discussed in the
Rulemaking Analyses and Notices section of this document and the RIA
reflect these advancements.
In response to Advocates' comments on potential health impacts of
EOBR use, the Agency has addressed both positive and negative health
impacts in Appendix A of the EA for this rule, which has been placed in
the docket. The Agency carefully reviewed research on the potentially
negative impacts of electronic monitoring and concluded that use of
EOBRs required in today's final rule will not result in negative
impacts on driver health for two reasons: First, because monitoring of
HOS compliance is an existing, not a new, requirement; and second,
because
[[Page 17214]]
the Agency is requiring EOBRs to monitor safety, not workplace
productivity. The underlying HOS regulations are the subject of a
separate rulemaking action. Cost and benefit estimates of the HOS
regulations are included in the analysis for that separate rulemaking
(72 FR 71247, December 17, 2007).
2 General Opposition to Mandated Use of EOBRs
One hundred thirty-six commenters, the majority of whom were
drivers or individuals, generally opposed any mandated use of EOBRs.
The SC&RA, TCA, IBT, AMSA, and a driver claimed that FMCSA had not
demonstrated EOBR use would improve highway safety. SC&RA questioned
FMCSA's estimates in the RIA, concerning relationships between
improvements in HOS compliance and improvements in safety outcomes
resulting from use of EOBRs.
Several commenters criticized the Agency for failing to produce any
definitive studies demonstrating the safety benefits of EOBRs. Some of
these commenters cited the University of Michigan Transportation
Institute (UMTRI) or American Transportation Research Institute (ATRI)
studies which concluded that safety benefits were difficult to assess
due to lack of empirical data. SC&RA stated that a 2006 study by ATRI
did not identify safety benefits. OOIDA likewise criticized the RIA for
assuming EOBRs would improve compliance rather than demonstrating that
improvement would, in fact, occur. It also quoted a 1998 UMTRI study
concluding EOBRs would have little or no effect on safety.
Forty of the 136 commenters stated FMCSA failed to prove that using
EOBRs reduced driver fatigue, prevented or reduced the severity of
accidents, or lowered operational costs. IBT expressed concern that
employers would use EOBR data to pressure drivers to improve their
operational productivity by driving faster and making shorter stops.
Gantec Trucking stated FMCSA has not shown that strict compliance
with HOS limits improves safety, considering that accidents in which
the CMV driver is at fault and fatigue-related accidents make up a very
small percentage of CMV-involved accidents. Gantec criticized FMCSA for
citing a lack of evidence to support strengthening driver training
regulations but not holding itself to the same standard for proposing
EOBR use. Some drivers believe EOBRs could make drivers less safe
because they believe the accuracy of an EOBR's record would force them
to continue driving when they would prefer to take a break: With paper
Records of Duty Status (RODS), drivers can take breaks as needed but
not necessarily record them. Others questioned how EOBRs could improve
safety because they cannot automatically detect or record non-driving
activity. IBT stated because drivers would still need to enter non-
driving time, they would still falsify their electronic records,
because it is to their benefit to do so.
Response: FMCSA disagrees with commenters that believe there are no
circumstances under which the use of EOBRs should be mandated. The
Agency believes the safety records of carriers found to have certain
threshold rates of violations of the HOS rules are a strong indicator
of the need to do more than issue civil penalties. The final rule
requires such carriers to install, use and maintain EOBRs to better
ensure their drivers comply with the applicable HOS requirements and
provides a means for prohibiting these motor carriers from continuing
to operate CMVs in interstate commerce if they fail to comply with the
remedial directive. This action is a significant first step toward
strengthening the enforcement of the HOS rules for carriers with
threshold rates of noncompliance.
The use of electronic records allows deviations from safety and
operational norms to be made more visible because they can be detected
far more rapidly than with paper records. Also, the electronic records
will enable motor carriers to develop safety or operational
countermeasures to address these deviations more efficiently and
effectively. However, the Agency does not accept the assertion that
drivers would not take breaks from driving because those breaks would
be recorded.
3 EOBR Remedial Directive
3.1. Applicability of the Remedial Directive
The Minnesota Trucking Association, AMSA, and one individual
supported requiring EOBRs only for motor carriers with a demonstrated a
history of serious noncompliance with the HOS rules.
In contrast, J.B. Hunt and many other commenters stated the
proposed threshold would not capture enough carriers to serve as a
meaningful deterrent to noncompliance or to positively influence
highway safety outcomes. ATA stated that the method described in the
NPRM for determining whether a remedial directive should be issued is
not likely to dissuade the bulk of the egregious or defiant HOS
offenders. ATA recommended focusing on at least the top 10 percent most
egregious HOS violators. This population could be determined by use of
valid compliance review data and, potentially, driver out-of-service
rates for HOS violations from roadside inspection data. ATA further
recommended, prior to taking remedial action, FMCSA provide motor
carriers an adequate warning period to give them an opportunity to
institute improved safety management controls. If improvement
benchmarks were not adequately attained, then more severe enforcement
action would be warranted.
OOIDA stated the proposed rule would punish only those carriers
that keep accurate records of their noncompliance and would not punish
the worst offenders who do not comply and who disguise their
violations.
Numerous commenters including Maverick and Werner stated the
requirement should apply to the driver rather than to the carrier. Such
commenters argued that if most of a carrier's drivers are not in
violation, mandating an EOBR for the carrier penalizes compliant
drivers, which increases the cost. Also, if the remedial directive is
applied to a carrier, the non-compliant drivers will simply go to
another carrier to avoid using the EOBR, which effectively nullifies
the potential benefits from mandating EOBR use.
Werner stated carriers are limited to taking after-the-fact
compliance and enforcement actions against their drivers. The carrier
should not be penalized for the actions of non-compliant drivers whom
it no longer employs if the carrier has made an effort to deal with the
drivers' HOS issues during their employment. ATA stated a record of HOS
noncompliance should follow the driver and should only be considered in
assessing the compliance status of the motor carrier where the driver
is currently employed. ATA argued, ``Penalties for EOBR violations
should be proportional for all responsible parties, with special
attention for tampering with the devices and the data.''
The National Propane Gas Association (NPGA)) asserted motor
carriers transporting placardable quantities of hazardous materials,
taken as a whole, do not represent a risk greater than non-hazmat
carriers and should not be required to use EOBRs. Conversely, Advocates
believes the inherently higher safety and security risks posed by
hazardous materials transportation and the special safety concerns
related to passenger motorcoach transportation, justify mandatory EOBR
use for both categories of motor carriers.
[[Page 17215]]
OOIDA and three individuals objected to the trigger for imposition
of a remedial directive because they believe the directives would
disproportionately affect smaller companies. The individuals noted a
company with very few trucks could be required to install EOBRs if only
one driver is put out-of-service, while a large company could have many
such drivers and not be targeted. Moreover, where a minority of drivers
is out of compliance, the innocent majority of the carrier's drivers
would be punished by a company-wide mandate. OOIDA asked if new entrant
safety audits would be included in the compliance reviews (CRs)
considered for the trigger; if so, it argued, small businesses would be
severely affected because most new entrants are small operations. J.B.
Hunt suggested FMCSA consider requiring new entrants to use EOBRs for a
minimum period.
NTSB stated encouraging carriers to view EOBRs as a means of
punishment would undermine the goal of industry-wide acceptance; such
broad acceptance would result in greater safety for all motorists.
Boyle Transportation agreed the punitive nature of the remedy would be
a disincentive for carriers to install them.
Some commenters focused on the perceived underlying problem--the
need for stronger HOS enforcement. According to Public Citizen, the
onus is still on the Agency to commit to improving enforcement of HOS
compliance. Advocates stated the rule would not address the pervasive
nature of HOS violations. It stated RoadCheck 2006 found there was an
upward trend in the number of HOS violations even though the new HOS
rules adopted in 2003 allowed drivers to work longer hours. CVSA agreed
that a more effective option for dealing with the habitual HOS
offenders is stronger enforcement. They also noted HOS noncompliance is
indicative of a systemic management problem within the carrier's
operation, and the mere installation of EOBRs will not correct this
problem. Finally, CVSA noted that government resources needed to
monitor carriers subject to mandatory EOBR use will be substantial, and
the benefits will not outweigh the costs.
Response: In its September 2004 ANPRM (69 FR 53386), the Agency
requested commenters to address the scope of the EOBR requirement.
Specifically, the Agency requested comment on whether it should:
``Propose requiring that motor carriers in general, or only certain
types of motor carrier operations, use EOBRs.'' 69 FR 53395. The Agency
received numerous comments on this issue. In the 2007 NPRM the Agency
noted it had the legal authority to adopt an industry-wide standard
that all motor carriers subject to the HOS requirements use EOBRs. The
Agency announced it would not exercise ``the full extent of its
authority at this time, however, and [would] instead propose a more
targeted approach of mandating EOBR use for only those carriers with
deficient safety management controls, as demonstrated by repeated
patterns of hours-of-service violations.'' 72 FR 2341. The final rule,
similarly, does not require all carriers to install and use EOBRs, but,
consistent with the NPRM, targets only those carriers with substantial
HOS noncompliance and associated deficient safety management controls.
This final rule makes one significant change to the remedial directive
provisions in the proposed rule, concerning the HOS noncompliance
threshold triggering a remedial directive for a motor carrier. The NPRM
proposed a so-called ``2 x 10'' approach as the ``trigger'' for a
remedial directive. That approach would have required a final
determination of one or more ``pattern violations'' of any regulation
in proposed new Appendix C to part 385 (``Appendix C regulations'')
during a CR, followed by the discovery of one or more pattern
violations of any Appendix C regulation during a CR completed within 2
years after the closing date of the CR that produced the first
determination. We explained in the NPRM that a pattern violation would
be ``a violation rate equal to or greater than 10 percent of the number
of records reviewed. For example, 25 violations out of 100 records
reviewed would be a 25 percent violation rate and therefore a pattern
violation. This trigger, if adopted, would result in the issuance of
approximately 465 remedial directives to install EOBRs annually.'' 72
FR 2364. The Agency justified mandating EOBRs on this subpopulation of
carriers, given that these carriers' ``severe'' HOS compliance
deficiencies ``pose a disproportionate risk to public safety.'' Id.
After reconsidering the alternatives discussed in the NPRM (72 FR
2374) including the proposed ``2 x 10'' remedial directives trigger,
and based on comments received, the Agency adopts the considerably more
stringent ``1 x 10'' requirement. As discussed in more detail below, we
agree with the numerous commenters, including government agencies,
carriers, industry associations, and safety groups, that the proposed 2
x 10 trigger would not mandate EOBR use by enough carriers, given the
total population. Under the requirement adopted today, carriers with a
10 percent violation rate of any HOS Appendix C regulations in any
single CR will be subject to a remedial directive. Approximately 5,419
carriers and 104,428 power units on average will be subject to this
directive per year. This represents a substantial increase in the
number of remediated carriers compared to the 2 x 10 proposal, as
further explained in the RIA and section 8, below. The crash rate for
such carriers is more than double the industry average, (although the
crash rate is slightly lower for the entire 1 x 10 group than it was
for the 2 x 10 group because of the larger pool of carriers subject to
the remedial directive). However, FMCSA anticipates the 1 x 10 approach
finalized today will result in greatly increased HOS compliance, and
therefore safety, in a cost-effective manner.
The Agency is revising the new 49 CFR 385.803 definitions and
acronyms section and other affected rule text to replace the term
``pattern'' violation with the term ``threshold rate'' violation.
Concern was raised that use of the term ``pattern violation'' in the
final rule might lead to confusion with other ``patterns'' of
violations in the FMCSRs and the Agency's enforcement structure. In
addition, the Agency believes the term ``pattern'' is more aptly
applied to the proposed 2 x 10 trigger, which required a finding of
serious HOS violations in multiple CRs. Under the final rule, the
finding of a 10 percent violation rate for an Appendix C regulation in
a single CR will serve as the trigger for issuance of a remedial
directive.
Two factors that were not operative in the NPRM analysis influenced
the final rule. First, section 4114 of SAFETEA-LU was codified in the
FMCSRs on July 5, 2007, approximately 6 months after the EOBR NPRM was
published (72 FR 36762 (preamble) and 36788 (regulatory text) amending
49 CFR 385.7(c), (d), (f), and (g)). Prior to the enactment of section
4114, although motor carriers were required under 49 CFR 390.15 to
record intrastate accidents on their accident registers, FMCSA did not
take intrastate accidents or safety violations into account when
determining motor carriers' safety ratings. Under section 4114, FMCSA
must now utilize interstate motor carriers' accident and safety
inspection data from intrastate operations (and from operations in
Mexico or Canada if the carrier also has U.S. operations) in
determining carriers' safety fitness under 49 U.S.C. 31144. This
includes safety inspection data on HOS violations while operating in
intrastate commerce. As a result of this larger universe of violations
under
[[Page 17216]]
consideration in the safety fitness determination process, the number
of carriers subject to the 1 x 10 remedial directive is now slightly
higher than it would have been prior to enactment of section 4114.
Second, after issuance of the NPRM, DOT made an important change to
its evaluation of safety benefits for all safety rules. This policy has
caused the Agency to revisit the cost benefit analyses for all rules
being developed, including the EOBR rule. Specifically, on February 5,
2008, DOT issued a memorandum to its modal agencies instructing them to
estimate the economic value of preventing a human fatality at $5.8
million. See ``Economic Value of a Statistical Life in Departmental
Analyses'' (available at http://ostpxweb.dot.gov/policy/reports/080205.htm). FMCSA also published a notice in the Federal Register
describing this policy change (73 FR 35194, June 20, 2008). The
previous value of a statistical life (VSL), which was used in the RIA
for the EOBR NPRM, was $3.0 million. Given that the VSL nearly doubled,
the net benefits of this rule, as well as those of other FMCSA rules
under development, were recalculated using the new figures. This
recalculation resulted in a reappraisal of all appropriate alternatives
by the Agency, taking into account Agency analyses concerning safety
impacts, enforcement resources, and data and comments received.
We fundamentally disagree with OOIDA's comment that this rule
mandates EOBRs merely for those carriers who keep records. In addition
to other HOS violations, failure to maintain and preserve records of
duty status in accordance with part 395 and falsification of records
are among the 24 separate violations in new Appendix C that will
trigger a remedial directive if violated at the threshold rate of 10
percent or greater. Other issues related to supporting documents are
discussed under the heading ``Incentives,'' section 7, below. Also, the
revised trigger applies to the same carriers as proposed in the NPRM,
namely those that fail to meet their part 395 compliance obligations.
But we anticipate the final rule will result in the issuance of a
significantly larger number of remedial directives because directives
can be triggered after a single compliance review in which the motor
carrier is found to meet or exceed the violation rate threshold, rather
than after a second CR that would take place as much as 24 months after
the initial set of threshold violations are found.
As previously mentioned, some carriers objected to having EOBRs
imposed based on the actions of HOS-noncompliant drivers who might no
longer be employed at the motor carrier affected. FMCSA disagrees with
this position. A key to addressing the issue of non-compliant drivers
is for motor carriers to exercise proper management controls. These
controls should include, for example, a process for conducting adequate
background checks prior to employing a new driver and ensuring that new
drivers are adequately trained. Likewise, if a carrier has adequate
management controls over driving operations, HOS violations at a rate
greater than 10 percent should not occur in the first place. To ensure
consistent oversight, FMCSA and its State enforcement partners must
conduct compliance reviews based on the drivers employed during the
review period in question. Subsequent adjustments in a non-compliant
driver's employment status or a motor carrier's pool of employees
should not influence the remedial directive determination.
At this time, the Agency elects not to require EOBRs for all new
entrants or hazardous material (hazmat) carriers because these
regulatory options are beyond the compliance-based scope of the current
rulemaking proceeding. The Agency acknowledges the concerns of
commenters, and plans to consider these options in preparation for a
new rulemaking examining the expansion the EOBR mandate.
The remedial directive element of this final rule treats hazmat
carriers, along with passenger carriers, differently from other
carriers, consistent with our authority to determine safety fitness of
carriers under 49 U.S.C. 31144 (c)(2)-(3) and 49 CFR part 385. As
discussed in our NPRM (72 FR 2376) and set forth in this final rule,
passenger and hazmat carriers will have only 45 days to install EOBRs
after receiving a remedial directive under Sec. 385.807(b)(1). As with
the current regulations under part 385, the shorter period reflects the
relatively higher risk to the traveling public (passenger carriers) and
to safety and security (hazmat) of these carriers' operations. Non-
hazmat property carriers will have 60 days to comply under Sec.
385.807(b)(2). Both provisions are adopted as proposed.
As to applicability of the rule to new entrant carriers, CRs are
not normally conducted on new entrant carriers, which are subject to a
safety audit within the 18-month duration of the new entrant program.
However, enforcement personnel have the discretion to follow up on a
poor safety audit by conducting a separate CR. Therefore, new entrants,
like other carriers that must comply with part 395, can be subject to a
remedial directive under a scenario where the audit leads to a CR.
We disagree with the characterization of a remedial directive to
install EOBRs company-wide as a ``punishment'' for the innocent drivers
who had no violations. The directive is intended to correct a
demonstrated deficiency in the motor carrier's safety management
controls and is therefore remedial, not punitive, in nature. This rule
does not revise or impose any new civil penalties, including penalties
for HOS violations. Moreover, drivers required to use EOBRs will
actually benefit from a technology that allows for automation of a
manual task that would otherwise burden the driver. As noted elsewhere,
this rule also does not ``target'' any specific industry sector or
particular size of motor carrier operation; instead, it focuses on
carriers with substantial HOS compliance issues.
We respectfully disagree that this final rule on EOBRs will have no
impact on HOS enforcement, since the rule improves the means of
detecting HOS violations within a problem motor carrier population and
thus enhances HOS enforcement.
3.2 Trigger for Remedial Directive
J.B. Hunt stated that, although the idea of mandating the least
compliant and least safe carriers to use an EOBR appears to be a
logical approach, there are problems with this method. It relies on the
premise that all of the ``least compliant'' carriers have undergone, or
soon will undergo, a CR. They disagreed with this premise, noted many
carriers are unrated, and asserted the NPRM approach assumes the Agency
is uncovering the least safe carriers through its log book sampling.
However, according to J.B. Hunt, the Agency is merely selecting from a
group of drivers, not carriers, who have had past compliance problems.
NTSB objected to using CRs to trigger remedial directives because
so few CRs are done relative to the number of carriers and because
carriers may be rated Satisfactory despite long and consistent
histories of violations. Advocates and Public Citizen also cited the
limited number of CRs conducted each year, which they said meant that
the ``pattern of violations'' cannot be meaningful. Siemens agreed with
this position.
Advocates added that carriers are selected for CRs using data from
SafeStat, which is deficient in several ways, as noted by the DOT
Office of the Inspector General (OIG) and the Government Accountability
Office (GAO). Advocates contend that relying
[[Page 17217]]
on CR data results in severe underestimation of HOS violations.
Advocates cite OIG's 2006 conclusion that without the critical data,
FMCSA cannot accurately identify the high-risk motor carriers for CRs
and enforcement actions (see ``Significant Improvements in Motor
Carrier Safety Program Since 1999 Act But Loopholes For Repeat
Violators Need Closing,'' FMCSA Report Number MH-2006-046, issued April
21, 2006). They also noted small carriers are not included in SafeStat,
yet may be at high risk of safety violations. Advocates also assert
that the 2 x 10 criterion further reduces the pool of potential
carriers subject to mandatory use of EOBRs.
A safety consultant stated CRs are an inadequate basis for
identifying non-compliant carriers. Most carriers are not rated. Safety
inspectors miss violations because of the volume of CRs they need to
conduct. He also objected to the distinction between intentional and
non-intentional errors in logs. He noted ``DOT's own HOS study in
2004'' suggested as many as 70 percent of long-haul carriers may have
utilized false logs; his experience as auditor indicates that the
figure may be accurate.
J.B. Hunt argued the methodology for selecting drivers in a CR does
not reflect the overall compliance of the carrier. Rather, it indicates
noncompliance among the particular drivers selected (from a population
previously identified as having problems): It does not ensure that the
least safe and compliant companies are required to install EOBR units.
The NPRM states, ``The overall safety posture of the motor carrier is
not being measured during the CR.'' J.B. Hunt is concerned this means
the desired safety impact of EOBR installations will not be maximized.
Maryland SHA asked that roadside inspection data be used to augment
data obtained through a CR. If a carrier fails a CR, a second CR should
not be needed before the remedial directive is imposed. Advocates
supported this position. An individual supported using inspection data,
suggesting FMCSA should set a threshold ratio for HOS violations found
during inspections as the trigger. One individual recommended applying
the requirement to carriers that are over 75 percent on SafeStat. J.B.
Hunt recommended targeting at least carriers in categories A and B in
SafeStat or some other reasonable measure that would impact a larger
population.
OOIDA also stated until FMCSA completes its revision of SafeStat
and issues a supporting document final rule, it will be nearly
impossible for OOIDA to comment on the impact. OOIDA believes the
public should have another chance to comment on the trigger when the
new scoring system is in place. In OOIDA's view, the Initial Regulatory
Flexibility Analysis (IRFA) must also be revised at that time.
Response: Consistent with our NPRM, the Agency will use CR results
to determine whether to issue remedial directives to carriers,
requiring them to utilize EOBRs. The CR, typically conducted at the
carrier's place of business, focuses on carrier management control as a
metric for determining carrier safety fitness under 49 U.S.C. 31144. 72
FR 2373. As stated in part 385, noncompliance with critical
regulations, which include all 24 HOS violations in the new Appendix C
to part 385, ``are quantitatively linked to inadequate safety
management controls and usually higher than average accident rates.
FMCSA has used noncompliance with acute regulations and patterns of
noncompliance with critical regulations since 1989 to determine motor
carriers' adherence to the Safety fitness standard in Sec. 385.5''
Part 385, App. B II(e). The rationale for using HOS violations under
new Appendix C is consistent with the current safety fitness
determination process and logically related to current part 385.
FMCSA believes the CR is the best assessment method to determine
which carriers should be required to install EOBRs, since, rather than
focusing on single violations, FMCSA is looking for threshold rates of
noncompliance. The new definition of threshold rate violation at Sec.
385.803, applicable to remedial directives, is entirely consistent with
our current rules governing safety fitness determinations in part 385.
The current regulations also require ``more than one violation'' for a
``pattern of noncompliance,'' and, where a number of documents are
reviewed, a finding of violations in 10 percent or more documents
reviewed. Part 385 App. B II(g). Obtaining this large sampling of
records can be best accomplished during a CR at the carrier's place of
business. Such an overview of carrier management and operational safety
oversight is not possible during a roadside inspection, as the review
is confined to a single CMV and its driver (or team of drivers), at a
single point in time. Indeed, CRs are designed to provide a sweeping
assessment of carrier operations and safety management controls, and
the assessments conducted, based on the Safety Fitness Rating
Methodology (SFRM), form the basis for carrier safety ratings. Given
the serious nature of the remedial directive and its potential to place
a financial burden on the carrier, we believe such a directive should
be issued only after a broad operational examination and extensive
record review inherent to the CR process. 72 FR 2373.
A number of commenters criticized the use of CR results as the
trigger for a remedial directive. Many contended the use of the CR was
inappropriate because the SafeStat algorithm used as part of the
process of selecting carriers for CRs does not reliably predict high-
risk carriers. These commenters believe other data, such as that
received from roadside inspections, should be more fully utilized to
determine which carriers receive CRs at the outset. In fact, SafeStat
does incorporate motor carriers' roadside inspection outcomes, accident
involvement, CR results, and enforcement history.
We cannot agree with J.B. Hunt's assertion that our basic
methodology for selecting carriers for CRs is flawed. The SafeStat
program continues to be upgraded to address issues raised by the GAO
and the OIG. According to OIG, ``FMCSA has made improvements in the
data relied upon in SafeStat.'' (See letter from Calvin L. Scovel III,
Inspector General, Department of Transportation, to the Honorable
Thomas E. Petri, U.S. House of Representatives, June 19, 2007. http://www.oig.dot.gov/item.jsp?id=2072.) Moreover, a 2007 report from GAO,
while suggesting improvements, nonetheless noted that SafeStat does a
better job of identifying motor carriers that pose high crash risks
than does a random selection. (See ``Motor Carrier Safety: A
Statistical Approach Will Better Identify Commercial Carriers That Pose
High Crash Risks Than Does the Current Federal Approach, U.S.
Government Accountability Office,'' June 2007, http://www.gao.gov/new.items/d07585.pdf.) FMCSA likewise disagrees with the Advocates'
comment that SafeStat does not include small motor carriers. To the
contrary, SafeStat does not exclude carriers based on size, and the
system currently reflects data on even 1- and 2-truck operators.
As noted in our NPRM, we considered and rejected using only
roadside inspection data for the remedial directives trigger because
roadside inspections fail to measure carrier operations as
comprehensively as CRs. Nevertheless, we acknowledge that far more
roadside inspections are conducted compared to CRs, and they are a key
and voluminous source of HOS compliance data. We will continue to use
this valuable roadside data indirectly in the remedial directives
selection process to inform SafeStat
[[Page 17218]]
selection rankings (72 FR at 2373 n. 5). Some commenters urged the
Agency to use the Driver Safety Evaluation Area (SEA) component of
SafeStat, which is based on roadside data, for a remedial directives
trigger. The Driver SEA, however, combines both HOS and non-HOS
violations, rendering its current use infeasible for a remedial
directives trigger based exclusively on HOS violations. The Agency is
actively exploring additional ways to tap into the enormous wealth of
roadside data through its Comprehensive Safety Analysis (CSA) 2010
initiative.\2\ In summary, CR findings will be the only direct basis to
trigger a remedial directive under today's final rule. However, the
follow-on rulemaking, discussed earlier, will explore this and other
methodologies for determining whether a motor carrier would be required
to install and use EOBRs.
---------------------------------------------------------------------------
\2\ The goal of CSA 2010 is to develop and implement more
effective and efficient ways for FMCSA, its State partners and
industry to reduce commercial motor vehicle crashes, fatalities, and
injuries. CSA 2010 will help FMCSA and its State partners contact
more carriers and drivers, use improved data to better identify high
risk carriers and drivers and apply a wider range of interventions
to correct high risk behavior. See http://www.fmcsa.dot.gov/safety-security/csa2010/home.htm.
---------------------------------------------------------------------------
3.3 Implementation of Remedial Directives
Maryland State Police commented the remedial directives concept
will work only if there are follow-up actions for failure to comply
with a directive. Report on Board stated the remedial directive would
have no impact on problem drivers because police would not know which
carriers are required to use an EOBR.
Others described the challenges of measuring impacts. For instance,
Boyle Transportation contended, any benefits gained could not be
extrapolated to the population at large because only bad carriers would
be included. Public Citizen declared the number of carriers affected by
the EOBR requirement is too small a sample to make statistically
significant statements about the effectiveness of the number of devices
installed. Maryland SHA stated imposing the requirement should affect
the carrier's safety fitness determination. They noted carriers'
ratings are affected by crashes for which they are not at fault.
J.B. Hunt, AMSA, and two individuals supported the two-year period
for which a remedial directive would be required. These commenters
generally did not provide detailed rationales for their support;
however, generally, they deemed the two-year period adequate to enable
carriers to come into compliance. AMSA also added that this period
would allow for carriers to adopt management controls and corrective
action. Advocates opposed the two-year period, since once the period
expired carriers could remove the devices; consequently, carriers will
view EOBR not as an asset, but as a punishment.
Maryland SHA and Advocates stated the 60-day period (with a
possible 60-day extension) to require EOBR installation once a remedial
directive has been issued is too long. Carriers could continue unsafe
practices during this period. Werner and an individual commenter
thought the 60-day period was too short. Werner stated for all but the
smallest carriers, the 60-day period would be used to locate a vendor,
negotiate contracts, obtain delivery, route all trucks to the terminal
for installation, and train the drivers. Some of these factors are
beyond the carrier's control. Flexibility is needed to give more than
60 days if the carrier is making a good faith effort to comply.
Response: In response to the Maryland State Police's assertion that
follow-up action is needed to enforce remedial directives, proof of
compliance will be required (e.g., receipts), and FMCSA will
disseminate information to enforcement personnel nationwide identifying
which carriers are required to use EOBRs. Carriers who do not comply
with a remedial directive will be ordered out of service. We believe
the prospect of such an order will ensure compliance for carriers
subject to a remedial directive.
We appreciate that issuance of a remedial directive requiring
installation of EOBRs for an entire fleet of CMVs within 60 days may
place a serious burden on certain carriers. Consequently, we appreciate
Werner's concern that some factors, such as picking a vendor, are
sometimes beyond a carrier's control, and, therefore, flexibility is
needed where a carrier is making a good faith effort to comply. We note
that, as proposed, today's rule allows FMCSA to extend the period
during which carriers subject to a remedial directive may operate
without EOBRs for up to an additional 60 days where the Agency
determines a carrier is making a good faith effort to comply with a
remedial directive. As a result, while the Agency expects compliance
within 60 days, some carriers may have up to 120 days, at the Agency's
discretion. Passenger and hazmat carriers, however, are limited to a
single, non-extendable 45-day period.
We disagree with ATA's suggestion to provide a warning opportunity
to allow for compliance improvements prior to issuing a remedial
directive. Such improvements, in practice, are difficult to assess. For
instance, would simply hiring a new safety officer be sufficient? Or
would merely hiring a consultant for a short time period to conduct a
``quick fix'' assessment of the situation be adequate? And how quickly
would improvement need to be initiated and implemented, and for how
long would it need to be sustained? These questions illustrate some of
the challenges to the Agency of verifying if such mitigation measures
are adopted and, if so, measuring their effectiveness at addressing the
underlying safety concerns. Discovery of HOS threshold rate violations
indicates a carrier has serious management control issues which need to
be addressed promptly and decisively. If the Agency has made an
erroneous finding, that finding can be challenged under the
administrative review process proposed in the NPRM and finalized today.
Because the 1 x 10 approach requires the finding of an HOS Appendix
C threshold rate violation in only a single CR, the proposed notice of
potential remedial directive applicability (NPRDA) is no longer
necessary and thus is not included in this final rule. The
administrative review procedures apply only upon issuance of a remedial
directive. Otherwise, the administrative review process proposed in the
NPRM is adopted without change in today's final rule.
If a motor carrier believes the Agency committed an error in
issuing a notice of remedial directive and proposed unfitness
determination, the carrier may request administrative review under
Sec. 385.817. Challenges to the notice of remedial directive and
proposed unfitness determination should be brought within 15 days of
the date of the notice of remedial directive. This timeframe will allow
FMCSA to issue a written decision before the prohibitions in Sec.
385.819 go into effect. The filing of a request for administrative
review under Sec. 385.817 within 15 days of the notice of remedial
directive will stay the finality of the proposed unfitness
determination until the Agency rules on the request. Failure to
petition the Agency within the 15-day period may prevent FMCSA from
ruling on the request before the prohibitions go into effect. The
carrier may still file a request for administrative review within 90
days of the date of issuance of the notice of remedial directive and
proposed unfitness determination, although if such request is not filed
within the first 15 days, the Agency may not necessarily issue a final
determination before the prohibitions go into effect. Challenges to
[[Page 17219]]
issuance of the remedial directive and proposed unfitness determination
are limited to findings of error relating to the CR immediately
preceding the notice of remedial directive.
The final rule does not affect current procedures under Sec.
385.15 for administrative review of proposed and final safety ratings
issued in accordance with Sec. 385.11. The Agency is adopting non-
substantive revisions to Sec. 385.15(a), however, solely to correct
two typographical errors.
A motor carrier subject to a remedial directive will not be
permitted to request a change to the remedial directive or proposed
determination of unfitness based upon corrective actions. In contrast
to Sec. 385.17, under which the Agency considers corrective actions
taken in reviewing a carrier's request for a safety rating change, the
only ``corrective action'' the Agency will take into account in
conditionally rescinding a proposed unfitness determination under
subpart J will be the carrier's installation of Sec. 395.16-compliant
EOBRs and satisfaction of the other conditions of the remedial
directive. The Agency takes this position due to the severity of the
violations upon which the remedial directive is based, the need for
certainty in remediation of the motor carrier's proven safety
management deficiencies, the challenges of ongoing monitoring of
corrective action, the likely added deterrent effect, and the Agency's
desire to promote use of EOBRs in the motor carrier industry generally.
The Agency may, nevertheless, consider a carrier's installation and
use of EOBRs as relevant information that could, under certain
circumstances, contribute to an improvement of a carrier's safety
rating under Sec. 385.17(d). An upgraded safety rating based upon
corrective action under Sec. 385.17 will have no effect, however, on
an otherwise applicable remedial directive or proposed unfitness
determination. As noted above, a carrier may be found unfit based on
either failing to meet the safety rating component of the safety
fitness standard under Sec. Sec. 385.5(a) and 385.9, or under Sec.
385.5(b), by failing to install, use or maintain an EOBR, when subject
to a remedial directive under Sec. 385.807.
Appeal rights and administrative review, and the relationship
between the modified fitness determination rule in Sec. 385.5 and the
existing SFRM in Appendix B to part 385, were discussed at length in
the NPRM. See 72 FR 2376-2378. Except for the elimination of the notice
of potential remedial directive applicability, caused by the shift from
a 2 x 10 to 1 x 10 trigger, the administrative review procedures in the
final rule are unchanged from those in the proposed rule. The
relationship between the safety fitness determination and the SFRM
likewise is not modified by any changes made between the proposed and
final rules.
The Agency adds a new paragraph (e) to Sec. 385.13 to clarify that
motor carriers receiving a final determination of unfit or a final
unsatisfactory safety rating will receive notice that their motor
carrier registration under 49 U.S.C. 13902 is being revoked.
4 Transition From an AOBRD to EOBR System
Several commenters, including a motor carrier and two system
providers, addressed potential challenges for motor carriers currently
using AOBRDs and other automated HOS monitoring systems. They were
concerned with how the compliance dates would affect their use of
current AOBRD systems and expressed concern that the proposed EOBR
regulation would prevent transferring proprietary systems to new trucks
manufactured after the proposed compliance date.
Commenters predicted the period of transitioning could adversely
affect fleets' adoption of the new devices. For this reason, a provider
suggested the phase-in period should be fleet-based rather than
vehicle-based, and that ``breaks'' should be offered to early adopters
of EOBRs.
Response: It is not the Agency's intention to make AOBRDs obsolete
or to require compliant motor carriers to replace their current systems
of maintaining RODS. Only motor carriers that are subject to a remedial
directive will be required to install, use, and maintain EOBRs--and
those EOBRs will need to comply with the new performance requirements.
Any carrier that voluntarily installs an EOBR after the compliance date
must use a device that meets FMCSA's new requirements. Therefore, the
Agency does not consider it appropriate or practical to institute a
``fleet based'' compliance schedule for motor carriers that currently
use AOBRDs and are not subject to a remedial directive. The Agency does
not wish to penalize HOS-compliant motor carriers by setting an
arbitrary phase-out date for AOBRDs.
FMCSA is aware of many current systems with capabilities and
features that exceed those required for AOBRDs and likely meet most if
not all of the new EOBR requirements. Additionally, AOBRDs and EOBRs
record the same key information and use the same duty-status codes, so
FMCSA does not believe drivers or motor carriers will require a long
transition period. In any event, FMCSA will monitor developments
related to EOBR system availability associated with the implementation
of this rule.
5 Privacy
Numerous commenters expressed concerns about non-HOS uses of the
data being collected by EOBRs. Some commenters suggested the rule have
more restrictions on access to and use of the data. Some of these
commenters (primarily carriers or carrier associations) said the rule
should prohibit law enforcement from using the data for any purposes
other than enforcing HOS rules, such as issuing speeding tickets. They
also said agencies not involved in enforcing HOS should be denied
access to EOBR data unless they obtain the consent of the carrier or
driver. Werner Enterprises said the rule should clarify how long law
enforcement agencies may retain EOBR data and whether the agencies may
disclose the data to other parties. ATA, the Canadian Trucking
Alliance, and AMSA suggested carriers are unlikely to voluntarily adopt
EOBRs unless there are restrictions on the use of data for purposes
other than enforcing HOS rules. ATA recommended statutory protections
be provided to carriers pertaining to the control, ownership, and
admissibility/discoverability of data generated and derived from EOBRs,
and to assure the privacy rights of drivers.
Some commenters expressed concern competitors would gain access to
data recorded by EOBRs. One of them was also concerned shippers or
receivers would start demanding real-time monitoring of shipments as
part of any contract. Another commenter was concerned employers would
use the data recorded by EOBRs to push drivers to drive when it may not
be safe to do so.
Some parties raised the concern that data recorded by an EOBR could
be used in post-accident litigation. One commenter favored using EOBR
data to investigate accidents involving tractor-trailers, including
vehicle speed, braking, and steering for the last 30-60 seconds of
vehicle travel. The Maryland SHA said only the following entities
should have access to EOBR data for investigating tractor-trailers
accidents: The Secretary of the U.S. Department of Transportation,
FMCSA, the enforcement agency that investigates the crash, the carrier,
and the driver or the driver's personal representative.
Several commenters contended EOBRs would violate the privacy of
drivers. Some of these commenters said
[[Page 17220]]
the proposed EOBR requirement would be unconstitutional in that use of
EOBRs would violate the Fourth Amendment's prohibition against searches
absent a warrant or probable cause. Company drivers employed by
carriers with high HOS violation rates would find themselves subject to
EOBR monitoring because of the actions of others, which would not
satisfy a requirement of probable cause.
OOIDA provided extensive comments asserting that required use of
EOBRs would constitute an unconstitutional invasion of privacy as
drivers have a legitimate expectation of privacy when they sleep, eat,
and conduct personal business in their truck while not driving. OOIDA
said despite FMCSA's assurances to the contrary, EOBRs would capture,
store, and make available a variety of personal and proprietary
information on drivers and carriers (e.g., routes, customer locations,
etc.) not captured or not accessible through paper logs. The proposed
rule would require EOBRs to capture the location and time of a truck in
motion every minute. This information would be electronically
transferable and capable of being stored for later retrieval. Because a
driver can operate a truck for personal conveyance, the EOBR would
record where the driver spends his private time. OOIDA asserted the
contemplated use of EOBRs fails to meet the legal requirements for a
warrantless search. Such constant electronic surveillance would amount
to a search of the driver as defined by the Fourth Amendment.
Therefore, the use of EOBRs implicates core privacy interests,
including the right to privacy in personal information and in
associations. OOIDA further asserted it is impossible to understand the
full impact of the proposed EOBR rule on privacy without knowing more
about the pending rulemaking on HOS supporting documents.
OOIDA said the data captured by EOBRs is at far greater risk for
dissemination and misuse than data recorded by log books. It said any
data created by an EOBR that are collected by the government for
investigation or enforcement or any other reason would be subject to
requests under the Freedom of Information Act (FOIA) and could be
available by request to anyone, including the general public. OOIDA
said the U.S. Department of Transportation's Research and Innovative
Technology Administration (RITA) Volpe Center's report
(``Recommendations Regarding the Use of Electronic On-Board Recorders
(EOBRs) for Reporting Hours of Service,'' September 26, 2005, available
at http://www.regulations.gov, ID FMCSA-2004-18940-0351) agreed with
this conclusion. A commenter said because data collected by Federal
agencies are subject to FOIA, carriers should not have to report GPS
location data. ATA asked FMCSA to work with the trucking industry to
seek enactment of Federal statutory protections of EOBR data. ATA said
Federal law should support and clarify that motor carriers are the
owners of the data recorded by EOBRs and thus they should have
exclusive control over the data.
Response: This final rule does not change the Agency's treatment of
HOS records concerning access, use and retention. FMCSA's predecessor
agencies have had the authority to review drivers' and motor carriers'
documents since 1937, when the first HOS regulations were promulgated
(3 MCC 665, Dec. 29, 1937; 3 FR 7, Jan. 4, 1938). From the Motor
Carrier Act of 1935 onward, Congress has recognized the Federal
Government's interest in providing a higher level of safety oversight
to CMV drivers. CMV driver licensing, driver's physical qualifications,
training, and performance of driving and other safety sensitive duties
are subject to Federal regulation. The Federal Government also requires
records to document the results of various types of assessments (such
as assessment of physical qualifications and controlled substances and
alcohol testing) and compliance with regulations concerning CMV
operations (such as RODS to document HOS).
The HOS information recorded on EOBRs will be examined by Federal
and State enforcement personnel when they conduct compliance reviews or
roadside inspections. Motor carriers will not be required to upload
this HOS information into Federal or State information system
accessible to the public. Furthermore, enforcement agencies will
request and retain copies of HOS information to document violations and
will not disclose private personal or proprietary information.
The final rule maintains current uses of HOS data to determine
compliance with the HOS regulations. While we recognize the important
privacy concerns raised by carriers and drivers, we believe this final
rule carefully fulfills the Agency's need for accurate compliance data
without creating any undue intrusion upon a CMV driver's privacy. The
only information FMCSA is requiring EOBRs to collect is that
information necessary to determine driver and motor carrier compliance
with the HOS regulations. Consequently, FMCSA did not propose in the
NPRM, nor will it require in the final rule, that EOBRs record data on
vehicle speed, braking action, steering function, or other vehicle
performance parameters necessary for accident reconstruction. Regarding
the concern over potential use of EOBR data in post-crash litigation,
this rule does not affect the rights of private litigants to seek
discovery. Similarly, existing provisions governing FMCSA disclosure of
motor carrier and driver information under FOIA are not affected by
this rulemaking.
The Agency understands some drivers view their off-duty time and
related information pertaining to their CMV's location as being
sensitive information. Although the Agency does not find a legitimate
expectation of privacy in the public location of a commercial motor
vehicle, it will require automatic recording of CMV location
information only to the level of precision (State, county, and
Populated Place) shown in the Geographic Names Information System
(GNIS) maintained by the United States Geological Survey. FMCSA is also
declining to require locational tracking more frequently than once
every 60 minutes while the truck is in motion. The main reason
enforcement personnel would need to determine a history of a CMV's
location would be to verify the driver's HOS compliance. This can
normally be accomplished by reference to the name of the nearest city,
town, or village, without the precise geographic coordinates necessary
to identify, for example, a particular restaurant where a driver
stopped for a meal. This is the requirement today with AOBRDs, and it
also will be required under new Sec. 395.16(f)(4). Except in the
context of an investigation of a crash or a complaint of alleged FMCSR
violations (when the Agency might inquire into off-duty time to learn
if a driver was working for another motor carrier or performing other
work during an alleged off-duty period), FMCSA generally does not
inquire into a driver's off-duty activities. The Agency's interest in
records of duty status that identify the date, time, and location at
each change of duty status is based on its need to reconstruct the
sequence of events for trips to determine compliance with the HOS
regulations, including whether the driver was provided an off-duty
period that could be used to obtain restorative sleep. If during this
enforcement process FMCSA found evidence of vehicle activity during a
claimed off-duty period, we would inquire further to establish the
veracity of the RODS.
Briefly described are new provisions previously proposed in the
January 2007
[[Page 17221]]
NPRM regarding default status for EOBRs and audit trails. FMCSA will
require the ``default'' status for an EOBR be on-duty not driving
(ODND) when the vehicle is stationary (not moving and the engine is
off) for 5 minutes or more. When the CMV is stationary and the driver
is in a duty status other than the ODND default setting, the driver
would need to enter the duty status manually on the EOBR. The
performance requirements of Sec. 395.16 add a provision for
automatically recording the location of the CMV. The Agency believes
this requirement strikes an appropriate balance between improving the
accuracy and reliability of ODND status information and off-duty
information without intruding unnecessarily upon the privacy of the
driver. Drivers would still be required to record the location of each
change of duty status, as currently required under Sec. Sec. 395.8 and
395.15. Finally, as stated in the NPRM (72 FR 2352), the Agency
recognizes the need for a verifiable EOBR audit trail--a detailed set
of records to verify time and physical location data for a particular
CMV--must be counterbalanced by privacy considerations. See also the
discussion on FMCSA's Privacy Impact Assessment under preamble section
V. Rulemaking Analyses and Notices.
We disagree with two assertions made by OOIDA based on the premise
that ``any EOBR data collected by the Federal Government is subject to
FOIA and may be available to any entity or the general public.''
OOIDA's statement is an overly simplistic interpretation of our
responsibilities under FOIA and DOT regulations. See 49 CFR part 7. The
Volpe Center statement relied upon by OOIDA is not the official legal
opinion of FMCSA. The Agency rejects OOIDA's interpretation based on
the two scenarios raised.
First, FMCSA rejects the OOIDA argument that EOBRs will allow a
competitor to obtain access to information that would be deemed
proprietary, such as carrier routes. If the information was indeed
proprietary, the information would be exempt from FOIA disclosure under
5 U.S.C. 552(b)(4). Given that the Agency is only requiring EOBRs to
collect locational data at each change of duty status and at intervals
of no greater than 60 minutes while the CMV is in motion, and given
that the locational data need only identify the nearest city, town, or
village, the information gathered is not likely to be precise enough to
allow routes or customers to be determined. It is also likely that
competitors could, to some extent, discern motor carriers' routes by
other means. No commenter has provided information demonstrating
competitive harm--a showing mandated by FOIA--would occur from
disclosure of EOBR data as proposed in the NPRM. In the absence of such
a showing, the Agency has determined today's final rule, in conjunction
with existing legal authorities, properly balances the need to
safeguard proprietary information against the need to enforce safety
statutes and regulations.
Second, OOIDA alleges that FOIA could be used to obtain personal
information, including truck location. As a preliminary matter, the
Agency does not agree that the location of a CMV in a public place
qualifies as ``personal information.'' Moreover, with respect to
genuinely personal identifying information, FOIA's exception for
personnel, medical and similar information at 5 U.S.C. 552(b)(6)
severely restricts the Agency from disclosing such information. In
response to past FOIA requests for driver RODS from a carrier, the
Agency has redacted all information that would reveal the identity of
an individual driver. The Agency need not, and will not, disclose the
name of a driver when the sec. 552(b)(6) exemption allows the Agency to
disclose the HOS records in a redacted form. The Agency has also denied
FOIA requests seeking individual driving records in the Agency's
possession. OOIDA's characterization does not accurately reflect
applicable judicial standards for the disclosure or withholding of
private personal information.
We also disagree with OOIDA's claim that required use of EOBRs
amounts to an illegal search under the Fourth Amendment. It is well-
established that the collection and inspection of documents and
information pursuant to regulatory guidelines do not violate the Fourth
Amendment. The data that compliant EOBRs will gather are comparable in
most respects to the data already required on RODS. Further, there is
no reasonable expectation of privacy in the location of a CMV, which
can be monitored by the naked eye. The installation and use of the EOBR
will also be known to the driver, and thus any expectation of privacy
that might exist in the location of the CMV is significantly
diminished.
6 Performance-Oriented Standards for EOBR Technology
6.1 Use of Detailed Design Specifications
A number of commenters disagreed with FMCSA's approach of using
performance oriented standards in the NPRM, and advocated using
detailed design specifications instead. Three asked for prescriptive
guidance on how EOBRs must record HOS for drivers who work for multiple
carriers or who drive multiple CMVs. CMV manufacturer ITEC stressed the
need for interoperability between EOBRs and the equipment used by law
enforcement officials, including both hardware connections and software
compatibility. Siemens criticized the proposed performance-based
approach, advocating instead a ``single technical solution'' to account
for HOS for drivers who operate more than one CMV during any given day.
Siemens believes, based upon its experience with international
requirements for HOS monitoring, that an EOBR system's technical
concept should be ``tailored for the specific needs and goals of the
region in which they are being considered.''
Several other commenters, including XATA, SC&RA, and ATA expressed
concerns with FMCSA's approach. They seek specific, uniform, and
consistent EOBR requirements related to EOBR utility, reliability,
tamper-resistance, accuracy, durability, and effectiveness. Because
electronic equipment technologies and industry consensus standards and
recommended practices evolve over time, they questioned whether FMCSA's
regulation would provide sufficiently clear direction to suppliers and
users of EOBR systems. ATA asserted motor carriers would not adopt
EOBRs until their ``compliance'' was assured. Until that point, ATA
believed motor carriers would not be able to accurately assess
potential benefits and costs of EOBRs, and the potential for improving
EOBR technology would be constrained. ATA recommended FMCSA publish an
SNRPM to revise its proposed performance specifications.
Siemens and PeopleNet expressed concern about a need for design
specifications to promote implementation of EOBR data integrity
requirements. Siemens focused on EOBR data integrity through
operational and legal chains of custody. Although it did not elaborate
on its reasoning, Siemens contended neither AOBRDs nor the proposed
EOBRs would protect data from falsification and called on FMCSA to
standardize file formats, download protocols, and user interfaces.
Siemens also recommended FMCSA reference a ``defined'' [published]
security standard such as the Common Criteria to define the level of
tamper resistance.
Response: As the commenters point out, information technology
standards evolve over time; performance standards allow EOBR suppliers
to implement
[[Page 17222]]
solutions that will improve users' ability to enter, review, and use
data efficiently and effectively without constraining innovation or
improvements.
Responding to comments concerning prescriptive requirements to
ensure data integrity during transfers, Appendix A to part 395
addresses requirements for hardware, software, and communications
related to transfer of data from an EOBR to a safety official's
portable computer. As will be discussed later in this section, FMCSA
has substantially revised these requirements in response to the
comments on the NPRM.
Responding to Siemens'comments about the necessity for a ``single
technical solution'' for all EOBR applications, FMCSA disagrees. A full
set of design specifications for hardware, software, and communications
methods would impose unnecessary restrictions on the design of EOBRs
and support systems, limit the ability to adopt emerging technologies,
and constrain motor carriers with different operational characteristics
from implementing EOBR applications. However, the data element
dictionary will serve as a guide to developers of EOBR and support
systems to foster the use of compatible data structures for the benefit
of both motor carriers and safety oversight agencies.
Responding to comments concerning cross-referencing European Union
(EU) standards, FMCSA notes that the EU Council regulation No. 2135/98
requires a ``driver card'' for recording and transferring HOS data. It
does not include provisions for wireless data transfer. In contrast,
many North American suppliers of AOBRD systems currently provide
wireless data transfer capabilities between a CMV and the motor
carrier's information management systems via satellite or cellular
transmission. FMCSA does not agree that data transfer methods requiring
the use of physically removable media should be mandated, because
wireless data transfer (1) provides motor carriers considerably more
flexibility to implement HOS and other motor carrier operational
oversight systems, and (2) does not have an adverse effect on the
quality and integrity of the HOS data.
With respect to data integrity, although FMCSA is not requiring
specific information technology structures, the Agency expects motor
carriers and their EOBR system providers to use appropriate methods and
procedures in the development, testing, and operation of HOS
information systems to ensure data and information integrity. However,
after reviewing the ``Common Criteria'' cited by Siemens, ``Common
Criteria for Information Technology Security Evaluation,'' the Agency
understands that these requirements were developed primarily for use
with national security and defense communities and would go far beyond
what is necessary for monitoring HOS compliance.
6.2 Information and Display Requirements
6.2.1 Information Content Requirements
Several commenters objected to the proposed requirement for EOBRs
to record information currently required by the HOS regulations,
including shipping information, motor carrier name and USDOT Number,
and a time and location entry at each change of duty status. One
supplier contended an EOBR would need a ``full keyboard'' to enter this
information. Seven commenters objected to the proposed requirement to
include State line crossing information, questioning its relevance to
HOS compliance assurance.
Werner asked for clarification of the ``24-hour start time,''
because it believes the 24-hour period of the underlying HOS regulation
is affected by the ``split break'' and would vary. Although it noted
the ATA Technology and Maintenance Council's (TMC) Technical Policy
Advisory (TPA) (collectively, TMC TPA) recommended the use of the four
codes (i.e., OFF, SB, D, and ON), Werner asked for flexibility to allow
use of other duty status codes. Conversely, Siemens held the four codes
should be unique to avoid inconsistencies. ITEC asked if there was a
potential inconsistency between the diagnostic event codes and the code
words in Table 3, EOBR Diagnostic Event Codes.
ITEC and a motor carrier asked for flexibility in coding of
latitude and longitude values to allow software users to operate
outside of North America. Werner stated its system calculates the name
of the nearest city or town from latitude/longitude coordinates.
Response: As noted earlier, this rulemaking updates and revises the
requirements for use of technological methods to record HOS. It does
not change the underlying HOS regulations. With the exception of the
requirement to record CMV location hourly while the CMV is in motion,
it does not change the basic requirements for documenting HOS-related
information (such as motor carrier identification).
FMCSA disagrees that an EOBR would need a ``full''--presumably a
full-sized--keyboard. Some of the earliest AOBRDs did not have full
keyboards, leading to the requirement in Sec. 395.15(d)(2) for a
listing of location codes. Many contemporary devices have full
keyboards (although the dimensions are considerably smaller than those
used with desktop computers). Others use partial keypads or touch-
sensitive screens. Information such as the carrier name, USDOT Number,
and shipping document references can also be entered automatically
through centralized or administrative applications. These entries
continue to be necessary to identify the motor carrier, CMV, and other
information related to the transportation. EOBRs must accommodate
recordkeeping for drivers who operate multiple CMVs, as AOBRDs are
required to do.
FMCSA agrees that display of State line crossing information is not
necessary for HOS compliance assurance purposes and has removed the
requirement from the rule. Collection of State line crossing
information for fuel tax reporting purposes will continue to be
optional, as in the current AOBRD rule.
Responding to Werner's question about the start time for a 24-hour
period, this regulation has not changed. Both Sec. Sec. 395.8(d) and
395.15(c)(10) of the current rules allow the motor carrier to select
the 24-hour period starting time.
Responding to comments on duty status coding, the identifiers will
remain ``driving'' or ``D,'' ``on-duty, not driving'' or ``ON,'' ``off-
duty'' or ``OFF,'' and ``sleeper berth'' or ``SB.'' This maintains
consistency with current regulation and for the transition from AOBRDs
to EOBRs. Also, a driver could enter explanations concerning duty
status activities (such as a period of ON time spent loading a trailer
or performing maintenance on a power unit) in the Remarks section.
In response to ITEC's question about event codes, the labels for
the event codes are 6 characters, but the codes themselves would be 2
characters (bytes) in length.
In response to the questions about latitude and longitude codes,
the proposed rule was written with North American users in mind. FMCSA
recognizes some CMVs may travel outside North America, and other
nations might want to adapt the FMCSR requirement. In the interests of
international harmonization, the final rule makes a nominal revision to
the data dictionary to accommodate a field for east/west latitude (``E/
W'') and north/south longitude (``N/S''). EOBR and system suppliers may
set these fields to default to ``N'' and ``E'' entries.
As to the use of an algorithm to identify the nearest city, town,
or
[[Page 17223]]
village, Question 3 of the Regulatory Guidance to Sec. 395.15 allows
this. FMCSA intends to allow EOBR systems to use this method as well.
The Regulatory Guidance is added as Sec. 395.16 (f)(4). However, the
Agency has not accepted and will not accept only latitude-longitude
codes as location records because they do not provide a safety official
with a way to quickly determine a geographic location on a standard map
or road atlas. (See Sec. Sec. 395.15(d) and 395.16(f)(2).) Although
the provision for location codes in Sec. 395.16(f)(5) is specific to
the United States, EOBR and system suppliers may augment their
location-tracking capabilities to include locations outside the United
States.
6.2.2 Driver Acknowledgement of HOS Limits Alerts Sec. 395.16(o)(4))
Qualcomm and the TMC TPA oppose the proposal to require a driver to
acknowledge warnings of HOS limits. The TMC TPA recommends the EOBR
include configurable alert capabilities so a driver could receive
several alerts before reaching the regulatory limits of HOS. Qualcomm
stated it was unclear what would be required if the driver failed to
acknowledge warnings. Werner was concerned about a conflict between the
reporting time for position histories and the ability to record a 30-
minute warning. In contrast, Maryland SHA stated the warning should be
recorded in the EOBR and made part of the driver's record.
Response: The proposed ``response'' provision would have required
the driver to interact with the EOBR while the CMV is in motion, and it
is not part of the final rule. FMCSA does not believe it is appropriate
to require the driver to interact with the EOBR while the vehicle is in
motion. However, the requirement for the minimum, 30-minute alert
remains in the final rule.
6.3 Duty Status Category When Vehicle Is Not Moving (Sec. 395.16(d))
6.3.1 EOBR Must Default to On-Duty/Not-Driving When Vehicle Is
Stationary for 15 Minutes or More
Werner and the Maryland State Police agreed with the proposed 15-
minute default to on-duty/not-driving (ODND). In contrast, Qualcomm and
Siemens asserted the 15-minute period was too long and that the
determination of driving/non-driving time should be more flexible and
should also reflect motor carriers' operational practices in recording
driving time. Siemens recommended switching to ODND whenever a CMV
stops, contending that the interpretation of stops should be part of
the compliance software, rather than the data record.
Commenters suggested two distance thresholds for an EOBR to record
a CMV in motion as ``D.'' Werner suggested a 2-mile threshold, while
Qualcomm and the TMC TPA recommended a 1-mile threshold. For changing a
default status from D to ODND, Werner recommended if a vehicle moves
less than 1 mile, a 5-minute stop would reset the movement threshold.
The ``driving stop'' situation should alert the driver of duty status
change and allow the driver to override the default. For example, the
duty status would remain D if the CMV were stopped in traffic or when
the driver operated auxiliary vehicle functions while seated at the
driving controls.
Response: FMCSA agrees that a 15-minute period is too long. Section
395.16(d) has been revised to require that an EOBR automatically record
driving time, and the EOBR's entry must change to on-duty not driving
when the CMV is stationary for 5 minutes or more. The driver must then
enter the proper duty status. If the CMV is being used as a personal
conveyance, the driver must affirmatively enter an annotation before
the CMV begins to move.
FMCSA agrees with the TMC TPA's interpretation concerning the entry
of the time of a duty status change: it must be done when the change
takes place.
6.3.2 Recording and Confirmation of On-Duty Not Driving and Driving
Status
Several commenters, including Werner, Qualcomm, ATA, the MTA, and
the authors of the TMC TPA asked FMCSA to clarify how to record duty
status information when the CMV is in motion, but the driver is not in
a ``driving'' status. These situations include a maintenance technician
repositioning a CMV in a motor carrier's yard and a driver using a CMV
as a personal conveyance. Commenters also cited the draft TMC TPA's
treatment of situations where a driver fails to log on to the EOBR,
prompting the driver and continuing to record driving time if the
driver ignores the prompt, and allowing a driver to confirm previous
driving time, and generating a system error if a driver ignores
prompts.
Response: As is the case with AOBRDs, the driver would need to
select and enter the proper duty status and make the appropriate entry
in the ``Remarks'' section of the record. This rule does not change the
way FMCSA defines ODND activities. In response to the questions
concerning use of a CMV as a personal conveyance, FMCSA has revised
Sec. Sec. 395.16(d)(1) and 395.16(h)(3). If a CMV is being used as a
personal conveyance, the driver must affirmatively enter an annotation
before the CMV begins to move.
6.3.3 Other Comments on Duty Status Defaults
IBT, OOIDA, TCA and 23 other commenters stated that the need for
manual entry of non-driving status creates the same potential for
violations of the HOS rules as the present system. For many drivers,
ODND time may account for a substantial proportion of their work
schedules. Because drivers may receive less pay for hours ODND than for
driving time--or no pay at all--they have an economic incentive to
under-report the number of those hours. OOIDA contends if drivers were
compensated for this time most deficiencies in drivers' recording their
ODND time would disappear.
Response: FMCSA is not aware of any devices currently available
that would enable automatic recording of all categories of duty status,
nor did any commenters suggest that such devices are available. Given
concerns about personal privacy in general, we do not believe proposing
the use of personal activity monitors for HOS compliance purposes would
be appropriate. Despite the need to require the driver to manually
enter some kinds of information, FMCSA believes the automatic recording
of CMV location information will assist the Agency in investigating
potential violations of part 395.
As to drivers' compensation for ODND time, driver compensation is
not within FMCSA's jurisdiction.
6.4 Malfunction Alert System
Several commenters opposed the proposed requirement for an EOBR to
provide an audible and visual signal when it ceases to function
properly (Sec. 395.16(o)(6)). KonaWare, Qualcomm, TMC, Werner, and
FedEx believe the requirement for a failure-alert system would add to
the costs of an EOBR. Qualcomm expressed concern that driver alerts for
minor interruptions in device operation, such as loss of mobile
communications network coverage for very short periods of time should
not be required while the CMV is being driven. Instead, Qualcomm
believes they should be indicated only when the vehicle is stopped or
if they affect required data capture, requiring the driver to enter
remarks or amend a record.
The TMC TPA and Qualcomm recommended FMCSA allow the driver to fill
in missing data for non-critical sensor failure. The data would be
``annotated'' as driver-added information, and a record of the sensor
[[Page 17224]]
failure would be included in the log data. ATA said more specificity
was needed on driver reporting, carrier correction, and sensor
failures.
Response: FMCSA continues to believe it is necessary to require the
malfunction alert system required for EOBRS in Sec. 395.16 remain
essentially the same as that currently required for AOBRDs in Sec.
395.15(i)(4). FMCSA agrees with the commenters that certain types of
brief interruptions in operation should not be considered an ``EOBR
device failure.'' In particular, the Agency acknowledges location
information can be momentarily lost due to signal blockages, such as
from bridges or geographic features. The Agency revises Sec. 395.16(o)
to clarify subsystem and sensor failure alert.
6.5 Synchronization of EOBR to Vehicle (Sec. 395.16(e) and (g))
Most commenters strongly disagreed with the proposal to allow EOBRs
without integral synchronization with the vehicle. Vendor commenters
XATA, Qualcomm, Tripmaster, Siemens, and PeopleNet, motor carriers
Boyle Transportation, Fil-Mor Express, and J.B. Hunt, safety advocacy
groups IIHS and Advocates, and CVSA and TMC provided extensive comments
opposing the Agency's proposal to allow the use of EOBRs that are not
synchronized with the CMV. Various commenters addressed both the need
for integral synchronization and the inability of GPS technologies to
provide driving time and CMV travel-distance information with
sufficient accuracy.
XATA commented that a duty status other than D is difficult to
automate, so the D status must be as accurate as possible. A connection
to the engine makes it possible to automatically enter the vehicle
identification, so only the driver's identification must be entered
manually. XATA suggested entering both items of identification manually
increases opportunities for falsification and difficulty of auditing.
Tripmaster was concerned non-synchronized EOBRs could not be
designed to prevent tampering and manipulation. Tripmaster recommended
synchronization include obtaining power from the vehicle, obtaining
distance from vehicle-based sensors or networks, and ensuring the
device could not be deactivated without visible signs of tampering.
Tripmaster also believed FMCSA could generate more realistic
performance standards for synchronized than for non-synchronized EOBRs.
Tripmaster and the TMC TPA noted the inherent inaccuracies of GPS-based
distance measurement (citing a University of Oregon study that found
GPS-based distance accuracy to range from 75 percent to 94 percent of
actual distance traveled). Tripmaster added that non-synchronized
devices could provide location data from the driver carrying the device
on his/her person, well beyond what is required to verify the accuracy
of the RODS and that auditing the electronic RODS records for non-
synchronized EOBRs would be problematic, particularly if there would be
no supporting documents to verify driving time.
IIHS and Advocates stated FMCSA failed to provide evidence the non-
synchronized EOBRs can provide secure and accurate records, be made
tamper-resistant, or ensure records will be related to a unique truck,
driver, and carrier. Advocates was particularly concerned FMCSA's
proposed approach would eliminate the Agency's ability to assess the
design and operational integrity of EOBRs.
With respect to use of GPS technologies substituting for integral
synchronization, Qualcomm, ITEC, and other commenters cited problems
associated with losing the GPS signal. GPS technology suffers from
``canyon effect'' in urban areas, where tall buildings and tunnels can
block the communications pathways to the GPS satellites, and even
relying on GPS signals for distance traveled on a minute-by-minute
basis may not achieve the accuracy FMCSA desired in the NPRM.
Furthermore, the straight line point-to-point distances computed
between recording intervals is less than actual travel distances over
curved segments of highway. For this reason, Boyle Transportation
favored a requirement for EOBRs to have GPS capability and to be
synchronized to the engine, to improve both tamper-resistance and the
ability to calibrate the device.
A number of commenters stated non-synchronized systems would be
vulnerable to tampering and manipulation. Tripmaster, J.B. Hunt, and
PeopleNet noted non-tethered devices can be turned on and off or
removed from the vehicle and left behind, leading to falsification of
travel distance and duty status information. J.B. Hunt, Tripmaster,
PeopleNet and the TMC TPA noted physically blocking a GPS receiver's
antenna (such as by covering it with aluminum foil) was completely
effective in blocking the signal, and the signal could be corrupted by
a noisy radio frequency (RF) transmitter. Siemens added that
unsynchronized EOBRs would be useless for enforcement if used by
drivers willing to cheat because their data integrity would be no
better than with manual RODS. Additionally, safety officials would not
have an enhanced tool to detect falsification; and, if EOBRs were to be
mandated only in the context of a remedial action, this flaw would be
magnified. Siemens added that there is no way to prevent interruption
of signal availability (for example, in tunnels or when the driver
turns it off purposefully).
Only a few commenters supported the proposal to allow non-
integrally- synchronized EOBRs. Verigo described its PDA-based
electronic logbook and questioned the justification for a more complex
system. Xora supported non-integrally synchronized EOBRs on the basis
of their lower costs and potential wider adoption. ATA stated it would
support unsynchronized EOBRs only if: (1) Effective controls could be
developed to prevent or minimize system weakness, especially deliberate
blockage or loss of data; or (2) sufficiently severe penalties could
deter these violations. CVSA believed untethered EOBRs might be
possible in the future.
Response: After considering the comments on this issue, FMCSA
decided to require EOBRs to be integrally synchronized with the CMV in
which it is installed. This parallels the current requirement for
AOBRDs in Sec. 395.15. The definition of an ``integrally
synchronized'' device in the final rule is as proposed in the January
2007 NPRM. The current definition of AOBRD in Sec. 395.2 calls for the
device to be ``integrally synchronized with specific operations of the
commercial motor vehicle in which it is installed.'' It implicitly
defines synchronization through a performance-based requirement: ``At a
minimum, the device must record engine use, road speed, miles driven,
the date, and time of day.'' The final rule is explicit in its
definition: an integrally-synchronized AOBRD or EOBR must receive and
record the engine use status for the purpose of deriving on-duty
driving status from a source or sources internal to the CMV.
The NPRM based the proposed use of non-synchronized devices upon
the assumed accuracy of those devices to measure the distance traveled
by a CMV. After reviewing the comments that questioned those
assumptions, FMCSA decided it would be prudent to conduct a limited
field test of several of these devices. The Agency entered into an
interagency agreement with the Volpe Center to perform this work. The
results of this effort are documented in the report, ``Evaluation of
the Accuracy and Reliability of GPS-Based Methods for Measuring Vehicle
Driving
[[Page 17225]]
Distance,'' which has been placed in the docket for this rulemaking.
The study assessed the performance of commercial off-the-shelf GPS
receivers using various types of antennas and antenna mount
configurations and waypoint time intervals (that is, time intervals
during the trips) of 10, 30, 60, and 120 seconds. The vehicles'
odometers were calibrated on a certified course and the GPS-derived
measurements were compared to those corrected odometer readings. The
accuracy for vehicle driving distance measurements made within this
study ranged from 1.9 percent to 10.6 percent less than actual baseline
driving distance. In light of this significant level of inaccuracy,
FMCSA concluded that the integral synchronization requirement should
remain.
6.6 Accuracy and Frequency of Data Recorded by EOBRs
6.6.1 Rounding
ATA and Werner stated the rule should not place a motor carrier
that elects to use EOBRs at a disadvantage over those that do not. One
specific issue was that of ``rounding'' information recorded on paper
RODS to the nearest 15 minutes. ATA offered an example of a driver
beginning to drive at 6:55 a.m. after a 10-hour off-duty period. If the
driver used a paper RODS the time would be entered as ``7:00 a.m.,''
and the driver would be in compliance with the HOS regulations.
However, if ``6:55 a.m.'' appeared on the RODS the driver would be in
violation.
Response: In the situation these commenters describe, there is an
inherent advantage for the use of handwritten RODS. The 15-minute grid
on the RODS allows for flexibility in estimating start and stop times
(i.e., changes in duty status). Question 1 of the Regulatory Guidance
for Sec. 395.8 [available through http://www.fmcsa.dot.gov] states
that short periods of time (less than 15 minutes) are to be noted in
the Remarks section of the RODS. By contrast, a driver using an EOBR
(or an AOBRD) could be cited for any time period over or under the
prescribed requirements. However, FMCSA believes such small differences
are not likely under most circumstances to warrant enforcement action,
particularly when they are few and isolated.
6.6.2 Location Information, General
Two commenters addressed the precision of location information.
KonaWare recommended a location precision only to the level of the
nearest city, with latitude-longitude data included in the detailed
record to complement it. Qualcomm questioned the meaning of the phrase,
``correspond to Census Bureau 2000 Gazetteer County Subdivision data,''
and whether that referenced source is the most current.
FedEx stated the Census Bureau 2000 Gazetteer ``County
Subdivision'' data did not correspond to actual city names that would
make sense to a person viewing the location. FedEx held the
requirements in Sec. 395.15(d)(1) give a person enough information to
determine the location of status changes (i.e., city, town, or village,
with State abbreviation).
Response: FMCSA proposed to include latitude and longitude in the
Data Elements Dictionary. The Agency proposed ``nearest populated
place'' per Federal Information Processing Standard Publication 55
(FIPS 55) because ``city'' has a specific meaning under some States'
laws: in some jurisdictions, there are many populated places in FIPS 55
that are not ``cities.'' In response to Qualcomm's question, the County
Subdivision information is contained in FIPS 55. The FIPS 55 data set
has been integrated into the U.S. Geological Survey's Geographic Names
Information System (GNIS), and all references to that source in the
final rule will reflect this change.
6.6.3 Frequency of Recording Location Information (Sec. 395.16(f))
Many commenters believed the proposed 1 minute update interval was
excessive and unwarranted. PeopleNet, XATA, Boyle Transportation,
FedEx, and several others were concerned the size of the resulting
dataset would lead to significantly higher onboard data storage and
data transfer costs. Qualcomm, ATA, and others indicated such a
frequent recording interval should not be required when the CMV's
motion and mileage are determined through a synchronized, tamper-
resistant interface with vehicle sensors.
The TMC TPA stated minute-by-minute location history should be
required only for purposes of auditing GPS-based mileage accuracy of a
non-synchronized EOBR. Also, XATA contended that the requirement for
location recording frequency should take into consideration whether or
not EOBR synchronization would be required.
ITEC recommended a recording interval of no less than every 5
minutes, citing reduced onboard storage, as well as data transmission
and costs, both from CMV office and CMV roadside inspector's computers.
PeopleNet suggested a 5- or 15-minute interval might be sufficient so
long as accurate mileage information were recorded from the CMV's
electronic control module (ECM). FedEx recommended a 75-minute interval
for sending data to the host (back office) and a 15-minute location
record. CVSA supported the 1-minute interval and plus or minus 1
percent accuracy. DriverTech also supported the 1-minute interval.
Some commenters, including ATA, Tripmaster, and J.B. Hunt,
recommended FMCSA retain the current requirement to record the CMV
location only at each change of duty status. Werner cited its practice
of receiving hourly updates of CMV position.
Response: FMCSA acknowledges the commenters' concerns about the
proposed 1-minute recording interval. The final rule requires location
and time to be recorded at an interval of no greater than 60 minutes
while the vehicle is in motion. The reason for selecting an appropriate
location-recording interval is to ensure travel distance and the
associated driving time are recorded and reported at a level of
accuracy appropriate to ensure HOS compliance. Based on the information
provided by commenters and the Agency's decision to continue to require
that on-board recorders be integrally synchronized, the Agency believes
the new requirement achieves an appropriate balance between accuracy
and affordability.
As discussed in the NPRM and in the preamble of this final rule,
the Agency expects the addition of the requirement to automatically
record location information will significantly improve the accuracy of
driving time information.
6.6.4 Clock Drift
Qualcomm recommended several revisions to the proposed
requirements, including a requirement for the clock drift tolerance for
systems with or without mobile communications to not exceed 3 minutes
at any time. These systems should be calibrated at least every 3
months. For systems without mobile communications, vehicle system
clocks should be calibrated at least 3 times per year against an
external trusted source. Motor carriers should maintain records of all
clock recalibrations, including the degree of adjustment.
ATA stated the clock accuracy requirement should be realistic and
the regulation needs to address how clock accuracy is managed. ATA
cited the TMC TPA and its discussion of the Technology and Maintenance
Council's Recommended Practice 1219(T) (TMC
[[Page 17226]]
RP 1219(T)). TMC RP 1219(T) recommends that clock drift be checked
periodically. EOBRs with mobile communications and/or GPS may
recalibrate, or use calibrated network or GPS time, on a continuous
basis. Clock resets and recalibration adjustments should be made only
by a trained technician. Adjustments that exceed the allowable
threshold should be entered into the EOBR's maintenance record.
Werner asserted a requirement for clock accuracy would provide no
significant benefit to the system. Werner cited questions raised in the
TMC TPA, particularly the proposed 2 second per day time drift. Siemens
stated the clock requirement is achievable, but will require a periodic
synchronization with a trusted time reference. Tripmaster recommended
FMCSA consider a requirement for clock time drift of less than 1 minute
per month and that it be checked every 3 months.
The TMC TPA also provided specific recommendations for
recalibration of EOBR clocks: (1) Clock drift should not exceed 1
minute with calibration required at least every 3 months; (2) clocks
determined to drift more than an average of 1 minute per month must be
repaired or replaced; (3) EOBRs with mobile communications and/or GPS
should recalibrate or use calibrated network or GPS time on a
continuous basis; (4) clock resets and recalibration adjustments
(exceeding the allowable threshold) should be maintained with carrier
records and should be made only by a trained technician.
Response: Section 395.16(e)(2) of the proposed rule addressed date
and time information that could not be altered by a motor carrier or a
driver. FMCSA is not specifying a maximum daily time drift in the final
rule. However, Sec. 395.16(e)(4) provides that the time deviation must
not exceed 10 minutes from Coordinated Universal Time (UTC) at any
time.
6.6.5 Distance-Traveled Accuracy (Sec. 395.16(g))
Several commenters expressed concern with the NPRM's proposal for
accuracy of CMV distance travel: non-synchronized EOBRs, which obtain
distance-traveled information from a source external to the CMV, must
be accurate within 1 percent of actual distance traveled over a 24-hour
period. Most comments centered on the difference between the proposed
requirement in the NPRM for EOBRs and industry consensus standards for
odometers. Qualcomm, ITEC, Xora, Tripmaster, and Siemens expressed
concern that the NPRM's provisions did not align with the state-of-the-
practice. They cited SAE J1226, ``Surface Vehicle Recommended Practice:
Electronic Speedometer Specification--On Road.'' Section 5.1 of that
document, Overall Design Variation, states the overall odometer
accuracy ``shall be within minus 4 percent to plus 4 percent for each
actual unit of distance of travel over the operating range of the
instrument. The design limits should not, however, be construed as
absolute under all operating conditions.'' Thus, according to Qualcomm,
the best-case scenario for a non-synchronized EOBR would be a plus or
minus 5 percent error in the mileage calculation. In short, for systems
capturing mileage from the vehicle ECM odometer, Qualcomm recommended
the odometer should be maintained consistent with the vehicle
manufacturer's specification for odometer recalibration.
Qualcomm and other commenters recommended FMCSA reference SAE J1708
(``Serial Data Communications Between Microcomputer Systems in Heavy-
Duty Vehicle Applications'') for communications with the vehicle data
bus. Qualcomm also stated the requirements of Sec. 395.16 should
address conditions where location history data are incomplete due to
limitations in obtaining satellite fixes and should specify when a
driver should record HOS information in a paper RODS. ATA and Werner
offered similar concerns. ATA stated odometer accuracy is outside the
control of the EOBR supplier and excessive calibration requirements
would be operationally problematic and costly.
ITEC and several other commenters noted, although recording to
within 1 percent of the odometer is reasonable, the overall accuracy
for distance data should be 5 percent because an absolute accuracy of
plus or minus 1 percent of the actual distance may not always be
achievable. A key reason is that the rolling radius of the vehicle's
drive axle tires changes with ambient temperature, inflation pressure,
load, and tire wear, and these changes can exceed 1 percent. An
odometer is calibrated using the tire manufacturer's recommended
revolutions per mile, and the vehicle owner must maintain this rolling
radius when the vehicle's tires change from replacement, recapping, or
regrooving.
Response: In Sec. 395.16(g)(3), the Agency requires the distance-
traveled information recorded by the EOBR should not be less accurate
than the information obtained from the CMV's odometer.
Because FMCSA will allow only integrally synchronized EOBRs, the
proposed rule text concerning distance-traveled information from a
source external to the CMV, is not included in the final rule.
Responding to the request to formally reference SAE J1708, we do
not believe this is necessary because it is one of several engineering
consensus standards that address on-vehicle communications networks
that can provide engine use status. The Agency does not wish to
preclude the use of other standards, existing or in development.
Concerning commenters' references to SAE J1226, FMCSA notes that
this Recommended Practice also refers users to SAE J862, ``Factors
Affecting Accuracy of Mechanically Driven Automotive Speedometer-
Odometers.'' Among other things, this document describes nine factors
that can affect odometer readings, four of which relate to tires.
6.7 Review and Amendment of Records by Drivers (Sec. 395.16(h))
6.7.1 Driver Amendments of EOBR RODS.
Qualcomm recommended the regulations be more flexible to allow
driver annotations of the records, to the same degree it is possible
with paper RODS, to include annotating yard moves to reposition CMVs,
as well as noting driving time in stop-and-go traffic. Qualcomm also
asserted that driving status information automatically generated should
not be subject to alteration, but a driver should be able to ``claim''
driving time if he or she neglected to log-on. Qualcomm recommended
drivers should also be allowed to review and accept or reject any
administrative amendments, and administrative staff be required to
reconcile and assign all driving (vehicle movement) periods with
drivers. Both drivers and administrative personnel should be able to
annotate and reconcile manual data entries such as tractor and trailer
numbers.
Werner sought clarification of the term ``annotation,'' arguing the
driver should be able to amend non-driving status periods at any time
and should be able to request authorized administrative personnel to
amend driving time entries, but disagreed that correction of
typographical errors should generate an audit trail. The system should
keep a digital record or other evidence showing any amendments made
after the driving records were approved by the driver and identifying
the amendments by time, date, personnel involved, and the reason for
the amendment. Werner objected to limiting the driver to making
corrections to the RODS only before the first driving period of the day
or following the last
[[Page 17227]]
period of the day, because it would place an unnecessary burden on the
driver and force a driver who has made an error to drive the rest of
the day with incorrect records. According to Werner, driver acceptance
of the technology is critical to its use in the industry, and every
reasonable effort should be made to keep the systems forgiving and
driver friendly. DriverTech stated allowances need to be made for
legitimate truck moves.
DriverTech stated there needs to be a reasonableness factor to
correct honest mistakes and suggested a limit of one duty status
correction per 24 hours. The TMC TPA stated that the data capture and
data integrity requirements proposed in the NPRM needed better
definition and improved usability. For example, they recommended that
for the most common cases, the driver and administrative records
amendment process needs to be more thoroughly defined and practical to
ensure drivers submit complete and accurate electronic logs. The
process of making and reviewing amendments made by administrative
personnel needs to address more specific situations. TMC RP 1219(T)),
currently under development by the ATA Technology and Maintenance
Council S. 12 Onboard Vehicle Electronics Study Group, outlines a
recommended process that it believes better ensures data accuracy and
accountability. Automated recording of duty status changes and
effective recording of overrides need more specificity to address yard
moves and stopped-in-traffic scenarios. RP 1219(T) recommended
amendments be limited to eight specific items.
Response: In Sec. 395.16(h)(3), FMCSA selected the term
``annotate'' rather than ``amend.'' Annotating a record implies adding
information, generally for the purpose of clarifying it. Amending a
record implies changing it. An EOBR must automatically record driving
time (Sec. 395.16(d)(1)) so there should be no need for a driver to
request designated administrative personnel to amend a driving record.
Section 395.16(h)(3) has been revised to include use of a CMV as a
personal conveyance. It requires the driver to annotate the
corresponding driving time entry to reflect such use.
As discussed earlier, Sec. 395.16(d)(1) requires the EOBR to
automatically record driving time. Altering driving time records is
prohibited. However, remarks may be added to annotate the record.
Section 395.16(h)(3) has been revised to address this.
6.7.2 Other Comments on Driver Interaction With EOBRs
Several commenters offered recommendations about driver interaction
with EOBRs. Several commenters offered recommendations about driver
interaction with EOBRs. For example, when team drivers use a CMV
equipped with an EOBR, they suggested the non-driving team member be
allowed to make entries in the EOBR while the CMV is moving. Others
suggested a method for the driver to override pre-programmed duty
status change thresholds (such as between driving and on duty). Still
others recommended FMCSA consider adding distance and time thresholds
for ``yard moves'' and for ``non-allocated driving time.''
Werner stated there had been little consideration or analysis of
driver acceptance. The ideal system should take into account the need
for driver training and the differing levels of technical
sophistication.
Response: This rule does not alter the treatment of the duty status
of team drivers. The final rule allows annotations of the EOBR's
electronic RODS. Whether an annotation is characterized as an
``override'' or by another term, the annotation must add information to
the HOS record--it must not overwrite or delete information. Because of
the enormous variations in motor carriers' individual policies and
practices, FMCSA does not believe it would be appropriate to establish
a single uniform threshold for non-allocated driving time.
Today's rule, like the 1988 AOBRD rule, is performance-based and
anticipates developers of EOBRs will work with their motor carrier
clients to ensure the devices are appropriately designed and
configured. Motor carriers must ensure drivers are trained to use the
new EOBRs properly.
6.8 Safety Officials' Access to HOS Information
6.8.1 EOBR Must Be Capable of Producing Duty Status Records for the
Current Day and the Previous 7 Days (Sec. 395.16(k))
Werner asked if an EOBR needed to retain 7 days of RODS in the
device itself, or if the information could be stored on a server.
Werner also asked for clarification on provisions for safeguarding and
retention of transferred data to portable computers used by roadside
inspection officials.
Response: RODS data need not be stored on the EOBR. Section
395.16(k)(1) allows use of ``information stored in and retrievable from
the EOBR or motor carrier support system records.'' As is the case in
the current AOBRD rule, Sec. 395.15(b)(4), HOS data must consist of
information ``stored in and retrievable from'' the device. As for
enforcement officials' duties regarding safeguarding and retention of
information is concerned, the HOS information they obtain from (or via)
EOBRs must be handled and safeguarded in the same way as other records
obtained during the conduct of enforcement activities. (See preamble
section IV. Discussion of Comments to the NPRM; 5. Privacy, Agency
response.)
6.8.2 EOBR Must Be Able To Produce, Upon Demand, a Driver's HOS Chart
Using a Graph-Grid Format in Either Electronic or Printed Form (Sec.
395.16(i) and (n))
CVSA supported the use of a graph-grid format. However, numerous
commenters, including Qualcomm, Tripmaster, the TMC TPA, Werner, and
ATA questioned the need for the EOBR device itself to produce the
graph-grid format.
Qualcomm, Tripmaster, and ATA believed the display requirements
should be limited to specific information (such as driver information
and the sequence of changes of duty status) in the vehicle, and other
data should be made available by electronic data transfer or reports
from a motor carrier's office system. Werner, XATA, and the TMC TPA
suggested, other than placing HOS information in a familiar format,
there is no real reason for an EOBR to display data in a graph-grid
format they believe computers used by roadside safety personnel should
be able to handle this task. The Maryland SHA offered a similar
comment. Conversely, ITEC stated it did not believe the data format
provided in Appendix A, Table 1, could be used to produce a graph-grid.
Qualcomm and ATA noted many legacy systems and devices could
potentially meet proposed EOBR requirements, save two: the proposed
display requirements and the viewable-outside-the-cab requirement. The
latter is a concern because many new devices are dashboard-mounted.
Because the format specification does not address requirements for
display size, character resolution, scrolling, and navigation, they
question how usable the display would be.
A motor carrier questioned whether EOBRs could produce the required
HOS information, and another contended FMCSA did not offer a
standardized method for retrieving EOBR recorded data because not all
agencies will have
[[Page 17228]]
the proper equipment to access a driver's logs.
A few commenters offered alternatives, such as using an integrated
printer with the EOBR rather than a mobile display. One asked how an
alternative display format would be approved.
The Maryland SHA stated the requirement that the data be displayed
in ``either electronic or printed form'' presents problems. If the EOBR
provides the HOS information in electronic format only, the officer
will have no substantive evidence or paper copy for court purposes,
which will hamper adjudication processes. Maryland SHA urged FMCSA to
assess how these changes will impact roadside enforcement activities,
as not all enforcement officers have laptop computers from which to
receive or review HOS data retrieved from an EOBR.
Response: The provision at Sec. 395.16(i)(2) would allow
electronic transmission of an EOBR-generated RODS for display on
another device, such as a PDA or portable computer used by a safety
official at a roadside inspection. FMCSA amends paragraph (i)(2) and
subsection (n) to clarify the requirement for the EOBR to enable RODS
data to be transferred to an enforcement official's PDA or portable
computer. The Agency also revises the rule text to remove the proposed
design requirement to display the graph-grid on the EOBR device.
The Agency also clarifies that data transfer methods discussed in
the NPRM and adopted in this final rule are meant to facilitate a one-
way transfer of data from the EOBR to the enforcement official's
computer and not the reverse. Several commenters appeared to interpret
this provision as a requirement for EOBRs to be able to interact with
each other, and for any EOBRs to be able to interact with any office
support systems. FMCSA leaves the decisions on whether to provide this
level of interoperability to EOBR system providers. Rather, the
proposed specifications were developed based on the assumption the
Agency would provide the software capable of: (1) Initiating the data
transfer, (2) transforming the EOBR-generated standard flat file into
the desired graphical output on enforcement officials' electronic
equipment (i.e., computer, PDA, etc.), and (3) determining whether the
RODS information was in compliance with 49 CFR part 395.
EOBR system suppliers and motor carriers would not need to
determine how to achieve interoperability with enforcement officials'
various types of equipment and software. Under the Motor Carrier Safety
Assistance Program (MCSAP), enforcement officials operate FMCSA-
approved hardware with inspection software compatible with FMCSA
systems to conduct roadside inspections. The proposed data format and
transmission protocols have been tested to work with enforcement
officials' tools. This was the rationale for proposing the EOBR make
data available in a flat file format, the simplest of formats (as
opposed to requiring a specific hierarchical or relational database
form), and for setting forth specific communications protocols.
The same would apply to information generated by the motor
carrier's office systems. The safety investigator uses FMCSA-approved
equipment and FMCSA-issued software to conduct the compliance review at
the motor carrier's place of business. Systems capable of producing the
flat file delineated in Appendix A to part 395, Table 2, would be fully
compatible with the compliance review software, and they would meet
Agency requirements under the new Sec. 395.16(i).
Responding to the SHA, FMCSA will require EOBRs display the
driver's duty status sequence, as is currently required for AOBRDs. The
Agency will also require drivers' HOS records be made available in
digital form to inspection officials.
6.8.3 EOBR Must Be Able To Produce Upon Demand a Digital File of the
Driver's HOS (Sec. 395.16(i)(2))
The TMC TPA stated security of digital EOBR data needs to be
considered, citing security threats external to the EOBR in the data
transfer process. Xora supported an EOBR that could obtain HOS
information from a centralized server, and one that could be physically
handed to roadside inspection officials. Werner asked FMCSA to define
``immediately'' in the context of an inspection. It noted a driver will
need the opportunity to verify the recently created logs for accuracy.
If the system maintains the log data off the truck for some or all of
the period being checked, a reasonable delay may be incurred in sending
the data to the truck in some form.
Response: Motor carriers and their EOBR system providers must use
appropriate methods and procedures in the development, testing, and
operation of HOS information systems to ensure data and information
integrity. Rather than specifying testing and assessment procedures,
the Agency again focuses on performance requirements for the EOBR user.
Under new Sec. 395.16(o)(2), the EOBR and associated support systems
must not permit alteration or erasure of the original information
collected concerning the driver's hours of service, or alteration of
the source data streams used to provide that information, and under
Sec. 395.16(p)(1), the motor carrier must not permit or require
alteration or erasure of the original information collected concerning
the driver's hours of service, the source data streams used to provide
that information, or information contained in its EOBR support systems
that use the original information and source data streams.
As to defining ``immediately,'' FMCSA requires CMV drivers to
maintain their EOBR records current to the last change in duty status
and encourages safety officials to exercise reasonable discretion in
allowing the drivers sufficient time to access the HOS records from the
EOBR, or from the motor carrier's support system.
6.8.4 Information Must Be Accessible to Safety Assurance Officials
Without Requiring Them To Enter In or Upon the CMV (Sec. 395.16(i)(4))
CVSA supported the requirement that information displayed on the
EOBR be accessible to safety assurance officials without requiring the
officials to enter in or upon the CMV. However, one driver stated
moving the EOBR in and out of the truck would lead to electronic
problems. He suggested using a cable to connect it to a computer.
Response: FMCSA agrees with CVSA. The final rule will retain the
proposed requirement that information displayed on the EOBR be made
accessible to safety assurance officials without requiring them to
enter in or upon the CMV. It will not be necessary to physically remove
an EOBR from its mounting in a CMV cab. The enforcement official will
provide a cable to the driver to plug into the EOBR, or request the
driver initiate a wireless transfer of the RODS data to the officer's
portable computer.
6.8.5 Electronic Records Must Be Transferable to Portable Computers in
the Specified Format (Sec. 395.16(i)(6))
A number of commenters provided comments related to the need for
safety officials to obtain digital records from EOBRs to conduct
roadside inspections. CVSA held EOBRs should use standardized data
formats and have a standardized interface for law enforcement so that
training, compliance evaluation, and monitoring are effective and
simplified. CVSA stated it would be better to equip
[[Page 17229]]
inspectors to print the record, which they will need as evidence.
Regarding security encryption, data security, and how these
interact with enforcement roadside computers, the SHA commented that
not all MCSAP agencies' safety inspection officials have laptop
computers in their patrol vehicles and or wireless platform
capabilities from the patrol vehicle.
Ohio PUC stressed the need for technological solutions to improve
inspection officials' ability to read and interpret electronic HOS
records. The MTA and OOIDA also stressed the need for training these
officials in the use of EOBRs and interpretation of HOS data.
CVSA stated electronic records must adhere to common, uniform, and
strict standards so inspection officials can read the data on laptops
or handheld computers. However, CVSA had concerns with the possibility
of these files introducing a virus or otherwise damaging the inspection
official's operating system or software.
Qualcomm stated the use of XML or other file formats should be
considered for Internet file transfers. It is also recommended the
specifications be deferred to an industry standards approach to address
any ongoing changes in security, technology, or data requirements,
rather than by including them in a regulation. The TMC TPA offered a
similar comment related to insulating a regulation from technological
change. The document advocated a hardwired connection between the EOBR
and the vehicle data bus and a network neutral wireless connection to
obtain data via the Internet from a secure server. ITEC stated it
assumed that, because it was not discussed, FMCSA did not intend to
require that EOBR data be downloaded onto portable media. Werner
questioned the cost of being able to download data.
Ohio PUC stated the rule must have verifiable provisions to ensure
EOBRs are standardized with a uniform format that all carriers must use
to display information. These must be easily read by roadside
inspection personnel and designed to include a standard means of
allowing enforcement personnel to download information from the
devices.
Response: FMCSA agrees with commenters that it will be critical for
roadside inspection officials to be prepared to interact with the new
EOBRs. The Agency has set the compliance date to provide sufficient
time for this transition. As discussed above, the final rule specifies
the use of standardized file formats and communications interfaces to
support the needs of safety officials operating in the field.
6.8.6 Communications information interchange methods (Sec. 395.16(i))
Qualcomm, TMC, ITEC, Tripmaster, and ATA opposed the wireless
information interchange standards cited in the proposed rule because
they would be likely to become outdated. The TMC TPA stated the
wireless methods are prone to connection management, interoperability,
and security issues, as well as changes in technical standards.
Qualcomm recommended FMCSA use TMC RP 1219(T) for technical
requirements. In addition, they recommended citing SAE J1708, ``Serial
Data Communications Between Microcomputer Systems in Heavy-Duty Vehicle
Applications,'' in reference to wired communications links using the
vehicle data bus. They also recommended FMCSA consider referencing SAE
J1939, ``Recommended Practice for a Serial Control and Communications
Vehicle Network.'' Qualcomm also asked FMCSA to consider submitting a
standards request to the Society of Automotive Engineers subcommittees
for J1939 and J1708 to address tamper-resistance technical
specifications for capturing information from electronic control
modules transmitting over the vehicle data bus.
Qualcomm and the TMC TPA recommended two methods for information
reporting they believed would be technology neutral for EOBR devices
and are expected to have significant longevity in availability. They
recommended use of the vehicle data bus for a wired data transfer from
the EOBR to a roadside inspection device (because this approach is
similar to that used for on-board diagnostic (OBD) emissions
inspections); and use of the Internet for wireless data transfers from
the EOBR (device and/or support system) with the roadside inspection
system (device and/or host support system). Although they noted
additional security standards would be required to ensure proper
authentication between devices and data transfer security, they
recommended these be addressed through industry standards rather than
by regulation.
Qualcomm and the TMC TPA both believe use of Universal Serial Bus
(USB) or a serial port would not be appropriate for a wired data
transfer. They cited problems with pin configurations and software
driver requirements, as well as the long-term viability of wired USB,
because wireless USB standards are under development. On the other
hand, they appear to favor use of the Internet for wireless data
transfers from the EOBR (and/or its support system) to the roadside
inspection system (device and/or host support system). Many EOBR
systems maintain near real-time communications with secure centralized
support systems, and they believe virtually all safety officials
conducting roadside inspections can use network connectivity to
retrieve this information from a support system (or directly) with
Internet file transfers. Qualcomm believed the Internet file data
transfer approach will be able to accommodate changes in wireless
communications standards and has high probability of still working
flawlessly over a 10-year or longer time frame.
Qualcomm held use of Wireless Local Area Network (WLAN) and
Wireless Personal Area Network (WPAN) technologies for peer-to-peer
wireless connections are not appropriate in EOBRs and law enforcement
systems because they have significant security vulnerabilities and are
prone to connection management issues.
Qualcomm also supported wired transfer via the CMV's data bus.
Qualcomm, Tripmaster, and ATA referenced TMC RP 1210(B) (Serial
Communications Application Program Interface). For wireless, they
referenced RP 1216 (the vehicle-to-office data communications
standard). Qualcomm stated the latter standard brings efficiencies to
the industry because it puts aside any proprietary communications
protocols and allows for wireless communications (via radio frequency,
infrared, satellite, cellular, or WLAN) between a trucking company's
office and its fleet.
ITEC recommended dropping the Bluetooth wireless standard, which is
not interoperable with IEEE 802.11 and RS-232 (which is out-of-date),
and adding IEEE 802.11p. ITEC-supported USB 2.0.
CVSA suggested that, while FMCSA may not want to specify the
communications technologies because they change so rapidly, the more
important aspects related to the data are security, content, and
timeliness of the information availability. Werner stated any wireless
access should be adequately protected.
KonaWare stated FMCSA should not specify data transfer technology.
If data transfer is needed, submission of data to law enforcement
within 48 to 72 hours should be acceptable.
Siemens expressed concern about costs for wireless data extraction.
Although they noted FMCSA included these costs in its estimate of
operating costs as a necessary item for mobile phone solutions and
fleet management systems, they were concerned these
[[Page 17230]]
costs were not addressed for minimally compliant, tethered EOBR
solutions that could use other methods to transfer data for backup
purposes. Siemens was concerned owner-operators, small carriers, and
carriers operating within limited geographic areas would not benefit
from wireless data extraction of HOS data.
PeopleNet stated the records should be available in wireless or
wired format, but not both. FedEx stated the protocols and application
interfaces needed to perform the data download are not defined. A great
deal of definition would be required to successfully implement a
roadside exchange as suggested in the NPRM, and changing technology
could make several of the suggested physical transport layers obsolete.
FedEx suggested wireless as a transport layer (802.11g and Bluetooth),
but stated the pairing methodology between EOBR and roadside device
must be defined. It also stressed the need for the Agency to define a
method for authentication between the EOBR and roadside device, an
especially important concern if the Agency contemplated using wireless
technology.
Response: The final rule requires the use of wired (direct physical
connection) and wireless communications (WiFi and cellular, as
described in more detail below) of the electronic RODS data record. For
a wired transfer, the roadside enforcement official will provide a
cable to the driver to be inserted into the EOBR's USB data port.
FMCSA is revising the requirements for the content of the data file
that would be downloaded from an EOBR to an enforcement official's
portable computer to remove the name of the driver and co-driver in the
records downloaded at roadside. The driver and co-driver will be
identified by employee identification number(s) in that downloaded
record. Enforcement officials may verify the identity of the driver
(and co-driver) from documents such as a driver's license and would
enter that information into their portable computers to generate
inspection reports and violation documents. This change is being made
because the combination of a name and other information in a
transmitted record places the record in the category of personally
identifiable information (PII). PII must be encrypted, and encryption
adds considerably to the complexity of software design, implementation,
and maintenance. These factors would increase the costs to EOBR
suppliers, motor carriers, and FMCSA. FMCSA stresses this change
affects only those records downloaded at roadside. All other records
maintained in EOBRs and support systems must include the driver's and
co-driver's names. This includes records requested by safety assurance
officials at a motor carrier's place of business.
The primary goal of the EOBR device itself is to collect and
safeguard data. There are numerous industry consensus standards and
recommended practices in this field, and FMCSA believes developers of
EOBRs and EOBR support systems are in the best position to select and
use those standards and practices to ensure their motor carrier
customers are able to maintain the confidentiality, integrity, and
availability of HOS data and information.
To ensure a reliable means of data exchange between each EOBR
device and a roadside safety official's portable computer, the
following hardware interface specifications are required:
1. Each EOBR device must implement a single USB compliant interface
featuring a Type-B connector.
2. USB interface must comply with USB V1.1 and V2.0 USB signaling
standards.
3. The USB interface must implement the Mass Storage class (08h)
for [software] driverless operation.
FMCSA will not allow the use of portable storage devices, e.g.,
thumb drives, for the transfer of the electronic RODS because they are
not capable of meeting the necessary authentication requirements.
6.9 Identification of the Driver (Sec. 395.16(j))
6.9.1 FMCSA's Approach of Not Specifying Identification Method
CVSA supported the idea of providing flexibility regarding how
drivers are identified. However, CVSA said FMCSA should specify a
minimum performance requirement including standardized and explicit
test procedures and expectations. ITEC approved of the decision to
allow motor carriers to choose among competing technologies for driver
identification. The company said driver identification technologies
would be a key cost factor in the implementation of EOBRs.
Several commenters, including IBT, OOIDA, and AMSA, disagreed with
FMCSA's approach, contending the rule should be more specific regarding
the identification of drivers. IBT was concerned unscrupulous drivers'
use of false identification could undermine efforts to improve HOS
compliance. Qualcomm, Siemens, and the TMC TPA said the rule should
have security requirements that address detailed policies and
procedures for driver identity management. They also requested the
requirements cover the use of third parties for EOBR security
administration and audit.
One commenter recommended using employee ID numbers to identify
drivers, while another proposed using an identification code made up of
the driver's license number and the abbreviation of the issuing State.
Response: FMCSA agrees the identification of the driver of a CMV is
key to implementation of this rule. However, imposing a set of
standards to assign and manage driver and employee identification
numbers is unnecessary to effectuate this rulemaking and is more
appropriately addressed through motor carriers' internal processes.
This final rule requires the driver's name as part of the EOBR's
record maintained by the motor carrier. However, it will not require
the driver's name to be part of the information transmitted from the
EOBR or a support system during the course of a roadside inspection
because the combination of a name and the other information is
considered personally identifiable information and is subject to
stringent and complex encryption requirements. As discussed earlier,
enforcement officials will verify the identity of the driver (and co-
driver) from documents such as a driver's license.
FMCSA's interest is that each driver used by a motor carrier is
uniquely identified for purposes of recordkeeping and the motor carrier
ensures that drivers enter duty status information accurately. How
individual drivers are identified--by name, by employee number, or by
another code--is left to a motor carrier's discretion. However, we very
strongly discourage a motor carrier from using a Social Security number
or driver's license number because of the potential for persons to
obtain access to information that is not relevant to HOS compliance
assurance. It is a motor carrier's responsibility to select and
implement information security policies--including issuing and updating
identification and information system access codes--appropriate to its
own operations.
Responding to Qualcomm's question concerning recording the hours of
drivers who use more than one vehicle, an EOBR support system must
account for this, as today's AOBRDs are required to do. Although not
explicitly required in the regulation, error-checking procedures in the
support system also should flag a driver who is shown as operating
multiple CMVs on the same day, during the same period of time. AOBRDs
have been required to identify
[[Page 17231]]
which driver of a team is operating the CMV at any given time--and
EOBRs must do the same. Each driver must be assigned a unique
identifier.
6.10 Maintenance and Repair (Sec. 395.16(p))
6.10.1 Motor Carrier Must Ensure EOBRs Are Calibrated, Maintained, and
Recalibrated
Werner said the requirement for motor carriers to ensure EOBRs are
calibrated, maintained, and recalibrated should not be imposed without
serious cost/benefit analysis. The carrier said this requirement could
be a substantial burden for many carriers who have trucks that are not
home-based at a terminal.
Qualcomm and TMC said the requirements for motor carriers should
also address security management and administration of EOBR systems.
They also said the rule should provide criteria for when third-party
services must be used if carriers do not have appropriate resources for
security management.
Maverick Transportation asked FMCSA to clarify how often EOBRs
would need to be recalibrated and how long a carrier would need to
retain calibration, maintenance, and recalibration records.
Response: Section 395.15(i)(8) the of current regulations requires
that AOBRDs be maintained and recalibrated in accordance with the
manufacturer's recommendations. Considering the range of approaches
(now and in the future), it would not be realistic for FMCSA to specify
maintenance intervals for EOBRs. The text of the rule adopted here
parallels the proposed regulation but adds a requirement for
calibration. This initial calibration would be done at the time of
initial installation, if the characteristics of the device require it.
Concerning security management and administration, those are
information technology matters, and any third-party performing this
work for a motor carrier would do so as the carrier's agent and under
the carrier's direction. Retention of EOBR maintenance and calibration
records is addressed in the general inspection, repair, and maintenance
requirements of current Sec. 396.3, because an EOBR, like an AOBRD, is
an ``additional part or accessory which may affect safety of
operations.'' These records must be maintained for 1 year or 6 months
after a CMV leaves the motor carrier's control.
6.11 Testing and Certification Procedures
6.11.1 Manufacturer Self-Certification (Sec. 395.16(q))
Qualcomm expressed support for the provision allowing EOBR
manufacturers to self-certify their products. The company said the
self-certification approach is consistent with the requirements in
Sec. 395.15 and should be continued. Maverick Transportation agreed
with manufacturer self-certification, but asserted EOBR manufacturers
should face penalties if their products are later found to be non-
compliant.
Conversely, several motor carrier and EOBR manufacturer commenters
believed FMCSA's proposed requirement for AOBRD and EOBR manufacturers
to self-certify their devices did not provide a sufficient level of
assurance to convince carriers to voluntarily use EOBRs. These
commenters indicated carriers would be more willing to invest in EOBRs
if FMCSA or an independent testing entity evaluated and certified
devices as conforming products. J.B. Hunt stated that, because most of
today's EOBR manufacturers are small businesses, they probably would
not have the financial resources to properly indemnify the carrier if
FMCSA were to find the devices noncompliant. Werner made similar
comments, noting the contracts offered by EOBR vendors would likely
restrict a carrier's right to recover from the vendor if the system
were found to be non-compliant.
CVSA recommended FMCSA and the National Highway Traffic Safety
Administration create a more rigorous, third-party certification
program for EOBRs. It also recommended the establishment of an advisory
board to create and maintain a list of approved EOBRs. This advisory
board could operate similarly to those groups that are involved with
speed-measuring instruments and breath alcohol testing devices.
Qualcomm and ATA offered the alternative of ``strong self-
certification.'' An international standard, ISO/IEC 17050, would be
used as a basis for requiring manufacturers to document their
conformance with a standard. An EOBR manufacturer's declaration of
conformity would be subject to standardized documentation requirements
and audits. They noted this approach would require a government or
industry entity to audit supporting materials for conformity
declarations and to maintain a registry of conforming products. ATA
stated such an authority does not currently exist. Tempering its
support of third-party certification, ATA cautioned that FMCSA should
balance the potential benefits of third-party certification against the
potential for increased cost of EOBR devices and possible delays in the
introduction of new devices and technology due to the need to
satisfactorily complete a certification process.
Response: The Agency is aware that a working group of the ATA's
Technology and Maintenance Council S. 12 Onboard Vehicle Electronics
Study Group is currently preparing a draft recommended engineering
practice, TMC RP 1219(T), ``Guidelines for Electronic On-Board
Recorders.'' Several commenters included this document as an attachment
to their comments. Although the final rule does not establish a formal
FMCSA oversight process for EOBR testing and certification, it is
possible that more widespread use of EOBRs may bring compliance
concerns to light. Therefore, FMCSA will monitor motor carriers'
compliance with EOBR and support system requirements as part of its
safety oversight programs.
6.11.2 Other Comments on Testing and Certification Procedures
The Ohio PUC asked that the rule provide for periodic certification
of the reliability and integrity of EOBRs, with specific penalties for
failure to comply; and it maintained widespread violations could occur
without such provisions. The MTA suggested the rule require EOBR
manufacturers to warranty performance of their products for at least 5
years.
Response: FMCSA takes seriously penalties related to false records
but does not believe it would be appropriate to set a prescriptive
requirement for ``recertifying'' EOBRs according to a fixed schedule.
The self-certification process will remain part of the FMCSRs. FMCSA
does not have the authority to impose a requirement for a warranty
period or warranty terms.
6.12 Other Comments on Proposed EOBR Standards
Several commenters believe the NPRM did not adequately address a
requirement to make EOBRs ``tamper-proof.'' Siemens said FMCSA should
require EOBRs to be tested and certified against a defined security
standard by independent laboratories. Advocates criticized FMCSA for
proposing no specific controls for ensuring that EOBRs are tamper-
proof, contending the Agency ``must set minimum requirements for what
constitutes tamper-proof or tamper-resistant EOBRs
[[Page 17232]]
and their key components.'' Advocates called upon FMCSA to ensure that
EOBRs are both tamper-proof and designed to indicate any attempts at
tampering. CVSA suggested FMCSA review the EU Information Technology
Security Evaluation process with regard to EOBRs. A team driver who had
used an EOBR said her motor carrier had altered the hours recorded by
the device, and FMCSA must ensure against improper alteration of data
by drivers, carriers, or law enforcement personnel. Two commenters said
the burden of making EOBRs tamper-proof should rest on the shoulders of
the manufacturers and FMCSA, and that all aspects of tampering should
be resolved before installation.
Response: The September 2005 report prepared by the Volpe Center:
``Recommendations Regarding the Use of Electronic On-Board Recorders
(EOBRs) for Reporting Hours of Service,'' addresses a range of methods
to prevent, to the greatest extent practicable, tampering with the
physical EOBR device, as well as the electronic records it holds. The
revised text of Sec. 395.16(p)(1) prohibits the motor carrier from
permitting or requiring alteration or erasure of original information
or the source data streams used to provide it. This covers both
physical and electronic alterations and erasures.
FMCSA reviewed the EU type-specification for electronic tachographs
early in this rulemaking process. The type-specification is highly
design-prescriptive for both the hardware and software elements of the
electronic tachograph and support systems. By contrast, FMCSA
regulatory policy expresses a strong preference for performance-based
regulations. Furthermore, because the EU directive for the electronic
tachograph is based upon a compliance-assurance model that is
dramatically different from that of FMCSA, FMCSA continues to believe
adopting it would be inappropriate. And, as discussed above, the final
rule will continue to require manufacturer self-certification of EOBRs
and their support systems.
6.12.1 Environmental Specifications
For operating temperature, Qualcomm and ITEC said the typical
industry standards for device functionality while installed in
commercial vehicles (-40 to 85 [deg]C) exceed the rule's requirements
for the temperature range at which EOBRs must be able to operate (-20
to 120 [deg]F (-29 to 49 [deg]C)). Both commenters suggested the rule
defer to industry standards for environmental performance, specifically
SAE standard J1455, ``Recommended Environmental Practices for
Electronic Equipment Design in Heavy-Duty Vehicle Applications.'' TMC
offered a similar comment.
NTSB stated the NPRM failed to address damage-resistance and data-
survivability, and asked for performance standards for these issues.
Response: FMCSA agrees with Qualcomm, ITEC, and TMC and in the
final rule revises the environmental operating ranges (temperature,
etc.) for EOBRs. In response to NTSB, FMCSA considers it appropriate to
require EOBRs to comply with the same generally-accepted industry
consensus standards for durability and reliability as other electronic
components used in trucks and buses, but not to go beyond these
standards in terms of crash- or fire- survivability.
6.12.2 Reconstruction of RODS After EOBR Failure
Werner and the Maryland State Police questioned the requirement
that a driver reconstruct RODS for the past 7 days in the event of an
EOBR failure. The two commenters doubted that drivers would be able to
do this unless the data had been printed out, transmitted to the
carrier, or backed up in some other way.
Response: Records must be available for the current day and the
past 7 days so safety officials can review them during roadside
inspections. This is not a new requirement; it currently applies to
both paper RODS and AOBRDs (Sec. Sec. 395.8(k), 395.15(b)(2)). The 7
days' worth of records can include those records already transmitted to
the motor carrier.
6.12.3 Requirement To Carry EOBR Instructions and Blank RODS (Sec.
395.16(l))
ITEC said the rule should be clarified to allow a motor carrier to
maintain the EOBR instruction sheet and blank RODS forms either
separately or together. Qualcomm expressed support for the requirement
that CMVs carry instructional material. TMC TPA suggested FMCSA be more
specific about the content of the instruction sheet to assure greater
consistency and usability.
Response: The requirement in the final rule is identical to the
current one for AOBRDS (Sec. 395.15). It does not specify that the
instructions and blank RODS forms be bound in a single document, only
that the driver have both of them on board the CMV.
7. Incentives To Promote EOBR Use
FMCSA is adopting as proposed two incentives for motor carriers
that voluntarily install and use EOBRs compliant with section 395.16.
First, after the traditional targeted review of their drivers' HOS
compliance, FMCSA will conduct random reviews of such carriers' drivers
for purposes of determining these carriers' safety ratings. Second,
such carriers will be granted relief from the supporting documents
requirements for purposes of recording on-duty driving time. FMCSA
requested comment on these two incentives, as well as on possible
additional incentives, including granting flexibility in the HOS rules
themselves.
7.1 Random Review for Motor Carriers Voluntarily Using EOBRs
Numerous commenters, including Report on Board, Werner, Maverick,
SCRA, and IIHS, said random review of a motor carriers HOS compliance,
as opposed to a focused review, would not provide enough incentive to
make voluntary installation of EOBRs attractive. Both IIHS and Report
on Board held only a mandate requiring EOBRs will work. Report on Board
commented that carriers believe they are competitively disadvantaged by
using EOBRs. Because focused sampling would continue, with violations
imposed based on that sampling, it felt that there would be little
reason for carriers to voluntarily adopt EOBRs.
SCRA stated there were no statistical data provided on safety
enhancement or cost benefits to support this element of the proposed
rule, arguing that application of technology should provide tangible
cost benefits and easily recognizable advantages for all required to
comply.
Several commenters objected to the incentive because they believed
it would place some carriers at an unfair disadvantage. OOIDA stated
FMCSA is proposing to lessen scrutiny of carriers that adopt EOBRs
while increasing scrutiny of other carriers, most of whom will be
small. OOIDA also stated the proposal is inconsistent with CSA 2010
since that initiative relies heavily on focused review of problem
drivers based on roadside data. ``Without any proof that EOBRs improve
HOS compliance or the safe operation of commercial motor vehicles,
FMCSA cannot justify the creation of such a dichotomous enforcement
strategy.'' One carrier was also concerned the proposal places small
carriers at a disadvantage because they cannot afford EOBRs, and they
will be given the same scrutiny as those mandated to use EOBRs.
While Maverick supported the random sampling incentive, Advocates
stated the implication is that the
[[Page 17233]]
outcome of EOBR use is not improved oversight and enforcement of safety
management controls. Advocates asserted the proposal would lead to
``more extensive HOS violations and lack of enforcement.''
Response: One objective of CSA 2010 is to leverage the capabilities
of existing technologies to make compliance and enforcement efforts
more effective and efficient. FMCSA believes policies that encourage
the adoption of EOBRs are consistent with CSA 2010. (See the earlier
discussion of CSA 2010 and roadside data in preamble section IV.
Discussion of Comments to the NPRM; 3.2 Trigger for remedial directive.
The motor carrier industry previously expressed concern that FMCSA's
current HOS sampling techniques during compliance reviews are not
random across all areas of a carrier's operation. Rather, the
compliance review procedures direct the safety investigators to focus
on known problem areas and drivers first. If the number of violations
discovered using the existing policy of focused sampling exceeds 10
percent of the records reviewed, a less than satisfactory safety
fitness rating is proposed. Thus, industry members argue, a motor
carrier's overall safety fitness rating can be adversely affected based
only on a focused review of known problem drivers or areas of a motor
carrier's operation without consideration of a motor carrier's overall
HOS compliance status or violation rate.
FMCSA does not agree that motor carriers under the proposed
incentive will be subject to less-thorough reviews. Under the incentive
proposed and adopted today, all motor carriers taking advantage of this
incentive, and all owner-operators leased to such carriers, will be
subject to the same level of initial review as under current
procedures, which focus first on drivers involved in crashes and those
with known HOS violations. Violations resulting from this initial
focused sample will continue to be considered for compliance
improvement and enforcement purposes. However, under the incentive, a
CR that revealed a proposed 10 percent or higher violation rate based
on the initial focused sample will be expanded through random sampling
to look at a broader segment of the motor carrier's overall operation.
Only the HOS violations resulting from this expanded review will be
used to determine a carrier's safety rating.
This incentive is justified on several grounds. The HOS portion of
CRs on motor carriers using EOBRs can be done far more efficiently than
traditional reviews of logbooks and supporting documents, thus allowing
motor carriers--as well as FMCSA reviewers--to do more thorough and
comprehensive checks of HOS records for accuracy and possible
falsification. The Agency expects EOBR use to lower voluntary-adopter-
carriers' rates of serious HOS violations, which, as noted above, are
related to higher than average crash rates. As a result, safety will be
promoted. Because civil penalties will still be imposed and SafeStat
scores will still be affected if violations are discovered during the
targeted review, carriers will continue to be motivated to correct HOS
compliance problems. See 72 FR 2378-2379. FMCSA emphasizes that the
Agency will continue to bring civil penalty enforcement cases against
both drivers and carriers for HOS violations discovered during the
initial focused HOS review, even though that analysis will not be used
for purposes of determining the carrier's safety rating.
7.2 Partial Relief From Supporting Documentation (Sec. 395.11)
Several commenters, including Maverick, SC&RA, TCA, J.B. Hunt, and
AMSA, generally supported the incentive providing relief from the
requirement to maintain supporting documents relating to driving time.
Commenters, including Maverick and SC&RA, stated EOBRs will capture
much of the same information as supporting documents. Continuing to
require supporting documents becomes a disincentive for using EOBRs.
AMSA stated retaining and reconciling such corroborating documents
is a financial, storage, and organizational burden on carriers, and
relief from these burdens might provide the desired incentive for a
carrier to consider adopting EOBRs. ATA stated that managing supporting
documents takes 258 million hours a year; the potential costs could be
billions of dollars. FedEx noted the NPRM claimed the EOBRs would
reduce compliance costs and increase productivity, but if the
supporting document requirements are not dropped, those claims were
overstated or wrong. If regulators require or allow technology to
replace paperwork for HOS, FedEx commented the Agency should replace
all paperwork for that requirement. Otherwise, it is an indication that
either the technology is not ready for implementation or the technical
specifications should be revisited.
MTA, Boyle, NPTC, ATA, and FedEx sought elimination of the
supporting documents requirement for those with EOBRs. NPTC stated
companies that use EOBRs to supervise driver operations and have
effective management systems should not be required to undertake the
additional administrative task of collecting and maintaining supporting
documents to verify the non-driving portion of a driver's hours. If a
company is found to be significantly non-compliant in its HOS
management, NPTC asserts FMCSA could use its enforcement authority to
impose additional and more stringent supporting document requirements
on that carrier and its drivers.
In contrast, J.B. Hunt said supporting documents cannot be
eliminated, but carriers should not have to retain documents that show
only time and location. If the document does not have any objective
information that discloses the driver's non-driving activities, it
would not be of value in an EOBR world. Additionally J.B. Hunt states
that, in most over-the-road operations, driving time is the most
important contributor to driver fatigue. For example, loading and
unloading times can be significant, but supporting documents are of
little value in determining the duration of on-duty activity. Siemens
stated law enforcement is unlikely to accept reduced supporting
documents over the long term, and inadequate performance standards lead
States and law enforcement to ignore EOBRs.
One owner/operator said this proposed relief was an unfair
advantage to motor carriers who could afford EOBRs.
Response: FMCSA agrees compliant EOBRs produce regular time and CMV
location position histories sufficient to adequately verify a driver's
on-duty driving activities. Under this final rule, motor carriers
voluntarily maintaining the time and location data produced by EOBRs
would need to maintain only those additional supporting documents that
are necessary to verify ODND activities and off-duty status.
It is not in the best interest of public safety to provide relief
from supporting document requirements necessary to verify ODND status.
Providing such relief could make verification and enforcement of ODND
activities extremely difficult, if not impossible in some cases. For
privacy reasons, the requirements for compliant EOBRs stop short of the
electronic, video or other driver monitoring measures that would be
necessary to verify individuals' on-duty not driving time and
activities through use of automated recorders.
FMCSA disagrees with FedEx that failure to eliminate all supporting
document requirements is an indication that EOBR technology is not yet
ready for implementation. FMCSA considers the ability to relieve
supporting
[[Page 17234]]
document requirements related to on-duty and driving time significant
in itself. Blanket relief from all supporting document requirements was
not proposed in the NPRM and is not included as part of this final
rule.
7.2.1 EOBRs and the Supporting Documents Rule
Several commenters raised the relationship of this rule with the
supporting documents rule. ATA stated FMCSA should complete the
supporting document rule as soon as possible. FedEx said the rule
should be coordinated with the EOBR rule, OOIDA and CVSA asserted until
the supporting document rule is complete, the public does not have
enough information to evaluate the incentives.
FMCSA published the supporting documents Supplemental Notice of
Proposed Rulemaking on November 3, 2004 (69 FR 63997), and proposed
requirements for the collection and use of documents to verify the
accuracy of driver records of duty status. It proposed language to
clarify the duties of motor carriers and drivers with respect to
supporting documents and requested further comments on the issue. FMCSA
withdrew this rulemaking action on October 25, 2007 (72 FR 60614) based
on issues with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520) analysis supporting this action. After the paperwork analysis
that accurately identifies the information collection burden associated
with the existing supporting documents requirements is complete, the
Agency intends to initiate a new rulemaking action. This will ensure
the new rulemaking proposal is based on an accurate and comprehensive
understanding of the existing information collection inventory.
FMCSA does not wish to delay the benefits of this rulemaking
pending completion of the supporting documents rule. Therefore, this
rulemaking provides for relief from the existing supporting document
requirements related to on-duty driving activities for motor carriers
that voluntarily install EOBRs.
7.3 Suggestions for Other Incentives
MTA recommended any violations occurring when the truck is being
used as a personal conveyance should be assigned only to the driver,
not the carrier. It suggested carriers should not be subject to
violations for speeding based on GPS data, and also that RODS
violations should be weighted as other categories are, not at twice the
value.
ATA suggested including positive credits or points for carriers in
the SafeStat selection criteria as applied to the safety management and
Driver SEAs. ATA also suggested FMCSA offer relief from the 2-point
assessment in the safety rating methodology for a pattern of HOS
violations. It also recommended the use of random sampling in
conducting compliance reviews. In the event these incentives cannot be
achieved through provisions in regulations, FMCSA should provide motor
carriers the ability to test and apply these incentives through pilot
programs and an expedited exemption process.
ATA, TCA, J.B. Hunt, Fil-Mor Express, AMSA, and two individuals
recommended tax incentives. Two individuals also recommended tax
breaks. TCA stated log auditing for EOBR logs should be done only at
roadside inspections, not by the carriers. DriverTech stated the fleets
and EOBR manufacturers should be exempt from lawsuits on product and
usage liability.
CTA recommended FMCSA consider allowing minor variances in driving,
on-duty and off-duty time, up to a specified limit. CTA did not see
this as an incentive to encourage EOBR use by compliant carriers;
rather, it considered it to be a reasonable enforcement approach to
avoid unwarranted penalties. Other commenters made similar suggestions.
J.B. Hunt suggested a number of incentives. It recommended
providing EOBR carriers with a credit on their Inspection Selection
System score to allow their drivers to more frequently bypass
inspection stations. J.B. Hunt said this may help gain much needed
driver acceptance. Only carriers with a good history of well maintained
equipment (Equipment Safety Evaluation Area (SEA) value or Out-of-
Service rates less than a certain score) should qualify for this
incentive.
J.B. Hunt said the Agency should make a commitment in the final
rule to work cooperatively with other agencies and governmental
entities in an effort to exempt EOBR units from the Federal Excise Tax
(FET) for original equipment manufacturer installations and equipment
retrofitting and to provide for an accelerated depreciation or
expensing option for tax purposes. It recommended ensuring EOBR
carriers are able to gain the benefit of the ``Intra-City Multiple
Stop'' rule by permitting the driver to show very short movements
(totaling less than 1 percent of daily miles traveled) combined with
other driving in the same city. This should also apply to consolidating
ODND time as currently permitted when logging on paper.
AMSA stated, without sufficient incentives, HHG carriers would find
it too expensive to install EOBRs and implement the supporting systems.
An individual suggested original equipment manufacturer-installed
EOBRs should come with the option to switch providers.
Response: FMCSA believes the majority of other incentive ideas
offered, including tax incentives, are outside the scope of this
rulemaking. FMCSA does not believe it is in the best interest of public
safety to count threshold rates of HOS violations the same as other
violations in our safety fitness rating methodology, as suggested by
the Minnesota Trucking Association and the ATA. To do so would
effectively allow motor carriers to continue in operation with a
Satisfactory safety fitness rating and 100 percent HOS noncompliance as
long as deficiencies were not documented in other areas of the motor
carrier's operation. Also, FMCSA did not propose, and will not require,
EOBRs to collect vehicle speed data.
8. Economic Analysis and Other Rulemaking Analyses and Notices
8.1 Economic Costs
8.1.1 Viability of EOBR Market Without a Broad Mandate
Three commenters, Report on Board, Siemens, and CVSA, stated a
broader mandate would lead to lower device costs. Report on Board
claims it did not see a viable market for its own product without an
industry-wide mandate. Siemens reported its device would cost 20
percent more under a long-haul mandate compared to what it would cost
under an industry-wide mandate and mentioned that component costs
should fall over time. However, IIHS pointed out there is already a
market for these devices, and questions of unit-cost and availability
are no longer relevant.
Response: FMCSA assumes that the price of EOBRs under an industry-
wide mandate should be considered from a long-run equilibrium
perspective--i.e., assuming manufacturers have had enough time to enter
the industry and expand capacity to meet demand. Under those
conditions, prices should be driven to where they allow efficient
manufacturers to cover their production costs and provide an adequate
profit.
The production of more units may allow manufacturers to take
advantage of economies of scale (whereby fixed costs are spread over
more units) and produce EOBRs at lower per-unit cost. The degree to
which economies of scale would reduce costs is uncertain, however.
Current and would-be EOBR manufacturers would, for the most part,
[[Page 17235]]
already be able to take advantage of considerable economies of scope
\3\ because they (1) Currently produce similar products, (2) already
possess the necessary technical expertise, organizational
infrastructure, distribution networks, and some of the necessary
manufacturing equipment, and (3) have access to variable inputs
(materials and labor). Independent of the number of EOBRs produced,
firms would not necessarily need to make outlays for many of these
fixed inputs. Similarly, though manufacturers might be expected to
achieve manufacturing cost savings through ``learning by doing'' (that
is, finding more efficient manufacturing methods as cumulative output
increases), it is not clear to what extent learning effects have
already been exhausted in the course of manufacturing very similar
devices. Finally, uncertainty about the number of new manufacturers
entering the expanded market makes it impossible to estimate the number
of units per manufacturer, which is a key variable in determining both
scale and learning effects.
---------------------------------------------------------------------------
\3\ Economies of scope: Per-unit or average total cost of
production decreases as a result of increasing the number of
different goods produced.
---------------------------------------------------------------------------
FMCSA agrees that the cost of EOBRs' electronic components--EOBRs
generally borrow components from existing technology--should trend
down, assuming that plentiful supplies of electronic parts continue.
However, and given the circumstances noted above, FMCSA does not have
sufficient data at this time that would allow it to estimate the
effects of greater production volumes on EOBR costs, and hence on EOBR
prices. In the face of substantial uncertainty over the extent of any
reduction in EOBR prices as a result of greater sales volumes, FMCSA
has assumed that the market price for EOBRs would remain unchanged
regardless of the breadth of the mandate, for the purposes of this
rule. The data and price projections will be explored further in the
follow-on rulemaking, discussed earlier.
The Agency agrees with IIHS that availability should not be a
consideration and that EOBR prices are not prohibitive. Report on
Board's claim that it did not see a viable market without FMCSA's
delivering captive customers is not supported by current market
conditions: Not only are numerous manufacturers already engaged in this
business, but the market for these devices could extend beyond U.S.
borders. In both the NPRM and this final rule, the Agency examined a
variety of devices, including the lowest cost device submitted for
consideration. The analysis for the final rule is premised on the use
of only a low cost device.
8.1.2 Alternative Device Cost Estimates
Report on Board, Siemens, NPGA, and TCA offered estimates of EOBR
device costs ranging from $300 to $3,000. Siemens stated the low cost
device considered in the NPRM would not be practicable due to its low
operational life, and offered a $300 price estimate for its own
minimally compliant device, which it claims has a ten-year operational
life with periodic maintenance and upgrades; the annualized cost of
this device would be $69.
Response: Since the NPRM was published, FMCSA has actively
monitored EOBR technology (both devices with and without extra fleet
management applications) currently being sold in North America. It
conducted its analysis in that NPRM using a range of devices priced
from $100 to $2000, a range into which most of the devices subsequently
described by commenters fall. The Agency categorically rejects the
assertion motor carriers will need to spend $3000 for a device that
meets the performance standards of this rule. FMCSA agrees the cost-
savings of the low cost device originally considered was severely
curtailed by its assumed short operational life. Since publishing the
NPRM, the Agency has become aware of other compliant low cost EOBRs,
and has focused its analysis on one of them, while carefully
considering all of the costs particular to this device.
8.1.3 Comments on Associated Costs
Eight commenters mentioned costs associated with EOBRs in addition
to the individual device costs. AMSA, SC&RA, Werner, the Maryland State
Police, TCA, and ATA stated driver and other employee training expenses
would be significant. Werner, AMSA, the Maryland State Police, and ATA
mentioned installation costs. FedEx, SC&RA, ATA, TCA, and NPGA stated
the Agency should consider administrative costs for such expenditures
as computer software and hardware, data extraction, and administrative
staff; NPGA further stated computing equipment to process EOBR data
could cost as much as $15,000 per carrier, and such expense would be
disproportionately large for its members, who, on average, have 9 or
fewer trucks. AMSA, SC&RA, Maryland State Police, and ATA commented
inspection, maintenance, and repair costs should be factored in. AMSA,
SC&RA, and ATA stated airtime costs for data extraction should be
accounted for, while Siemens stated a single annual operating cost
figure it has estimated for its low-cost device includes all airtime
costs.
Werner and ATA pointed to device calibration as possibly resulting
in significant cost. Werner stated calibration requirements may impose
significant costs on the carrier if calibration cannot be easily done
by existing staff and asked how often calibration will or should be
required. This could represent a substantial burden for many carriers
that have trucks that are not based at a terminal. ATA also listed
driver technical demands, external report generation, and the costs for
some fleets of moving from existing systems to new systems as
potentially adding costs.
Response: With the exception of calibration costs, which FMCSA does
not believe to be significant, the Agency included all of the costs
referenced by commenters. In any event, commenters for the most part
did not offer any alternative cost figures for the Agency to consider.
Regarding repair, maintenance, and upgrade costs, the Agency currently
bases its estimates on a device that is leased from its manufacturer
and does not have these costs associated with it. Cost and benefit
estimates now explicitly account for current use of AOBRDs, devices
that would meet the requirements of this rule, and fleet management
systems that can be upgraded to EOBR functionality.
The Agency does not believe NPGA's assertion that office computer
equipment for processing EOBR data ``could be as much as $15,000'' is
reasonable, particularly for its members, who, on average, have nine or
fewer trucks. The Agency has made every attempt not to understate any
costs, although all cost estimates are constrained by the criterion
that EOBR systems meet the minimum requirements of this rule. In
addition, hypothetically large cost figures are not germane, because
carriers incur excessive costs at their own choosing, not because the
rule requires them to do so. Costs of office equipment have been
eliminated in this analysis because the EOBR provider hosts all records
on a secure Web site and includes the price of this service in its
monthly fee.
Every device is configured differently, and not all devices share
the same costs. The complexity and cost of installation, for example,
can vary widely by device, and the costs of even similarly configured
devices can differ greatly. FMCSA presented the costs particular to
[[Page 17236]]
the three devices it considered; it could not present costs as if these
had been any other devices. Likewise, the current analysis focuses on
the actual costs of implementing the low cost device presented. As in
the NPRM, costs particular to that device are explicitly accounted for.
The goal of the cost analysis is to demonstrate how the performance
standards of this rule may be met with minimal cost, not to estimate
the costs of every possible device.
8.1.4 Costs of Training Law Enforcement
The Maryland SHA and ATA stated the cost of training enforcement
officers to review electronic logs should be included. The Maryland SHA
added State enforcement officials would also be asked to provide
``inspection services for verification of electronic-on-board-recorder
installation and operation,'' although enforcement personnel are
neither trained electronics installers nor mechanics. The Maryland SHA
also stated not all enforcement personnel have laptop computers in
their patrol vehicles, and those that do may not have wireless
connectivity; it would be impossible to check electronic logs under
these circumstances. Additionally enforcement personnel should not be
asked to perform this function as staffing reserves are already
strained with more important duties--e.g., roadside inspections,
homeland security activities, etc. Maryland SHA stated FMCSA should
fully assess the effects on enforcement. No funding is being provided
to enforce the new provisions.
Response: The Agency has carefully considered the costs to State
enforcement staff. The Agency has already increased its cost estimates
after recognizing that training in reviewing electronic records will
always represent an additional cost, and will never simply replace the
current training in paper RODS. In response to the Maryland SHA's
concerns, the Agency has estimated costs of inspecting EOBR devices,
and the costs of equipment purchases and upgrades for accessing and
reviewing electronic records.
8.2 Paperwork Savings
Six entities commented on paperwork benefits and driver's time use.
PMAA stated the time saved from not filling out logs is not
significant. However, the Maryland SHA agrees that EOBRs will save
time, and SC&RA stated automation should reduce administrative burden.
Report on Board estimated annual per truck paperwork burden costs
$2,029. Public Citizen commented electronic records are more easily
collected and analyzed, and such information could be used to more
accurately track and monetize time wasted at loading docks, which would
benefit drivers paid by the mile or trip. Verigo, a manufacturer of
manual electronic logs that lack the automatic recording features
required of AOBRDs and EOBRs, stated FMCSA is relatively silent on the
issue of HOS auditing and management reporting.
Response: Paperwork savings figure prominently into this rule's
analysis, and have been carefully considered. The paperwork burden
associated with RODS includes the time spent filling them out,
reviewing them, and filing them. FMCSA's estimate of the paperwork
burden of filling out RODS is 6.5 minutes per day per driver, and 3
minutes per day per driver for review and filing. Trucking companies
may not recognize all the benefits of paperwork savings if they pay
drivers by the mile or trip and do not compensate drivers for time
spent filling out logs. Costs directly borne by drivers are as
important as costs borne by motor carriers, and, as other commenters
have pointed out and the RIA shows, the time saving to drivers can be
significant. The Agency also agrees with Public Citizen that insofar as
EOBRs accurately capture total on-duty time, drivers may benefit when
wasted time, such as excessive time spent at loading docks, is
documented. Nevertheless, this potential benefit is not included in the
RIA because the Agency cannot predict if this added recording of on
duty time will translate into driver compensation, and if so, whether
this would be a transfer from motor carriers or paid for via higher
prices charged to shippers.
8.3 Regulatory Flexibility Act Analysis (Small Entities)
Forty commenters, including 15 carriers and 13 drivers, expressed
opinions on the impact on small entities. PMAA stated the cost would be
a heavy burden for small companies. TCA stated with high fuel costs and
expected tighter emission controls increasing the costs of new trucks,
the cost of EOBRs is one more burden the majority of these carriers
cannot afford. The Maryland State Police said mandating EOBRs could be
economically disastrous for some carriers. OOIDA said the burden would
be disproportionately borne by small entities, which do not have the
purchasing power of larger carriers or the large number of revenue
producing drivers across whom to spread EOBR costs; non-safety economic
advantages of EOBRs also come at a cost and typically are only useful
to those managing large fleets. OOIDA also stated small carriers are
more likely to be selected for reviews, although until SafeStat is
revised, it is difficult to be certain on that point; larger carriers
are more sophisticated about disguising noncompliance.
OOIDA also commented the most burdensome cost to small-business
carriers will be the loss of drivers who are unwilling to drive for an
EOBR-mandated motor carrier. As posited by OOIDA, for example, the cost
of the initial installation of an EOBR into an existing truck has been
estimated to be between $1,000 and $3,000. Either the motor carriers
will face that cost for each truck, or the owner-operator will bear
that cost. That cost may be prohibitive for a small-business, and
owner-operators who face such a cost will quickly look for work for
another carrier. Under either scenario, a motor carrier facing the
mandate will go out of business.
Response: All carriers are harmed, but especially small carriers,
by companies that gain a competitive advantage by violating safety
regulations. Although the majority of carriers are small businesses,
most will not be subject to the remedial directive. Any competitive
advantage gained by a small carrier by violating HOS will likely come
at the expense of carriers with similar characteristics--size,
geography, market share.
Regarding comments concerning costs, costs for the most part are
proportional to the number of power units a carrier would need to
outfit. Carriers would incur an annual net expense of less than $100
per power unit, less than 0.1 percent of annual revenue per power unit.
Furthermore, even these modest costs are avoidable as long as carriers
comply with the HOS rules.
8.4 Comments on Driver Health Considerations
Three commenters criticized the Agency for failing to adequately
consider driver health impacts in this rule. IBT stated carriers will
use EOBRs to pressure drivers to increase productivity, which would
increase their stress levels and adversely impact their health, and
OOIDA stated the stress of being monitored alone is enough to harm
driver health. Advocates, however, stated FMCSA's concern about the
stress of using EOBRs distorted the research results of several
studies, and the Agency had ignored potential health impacts of using
EOBRs and improving compliance. Advocates contended the Agency's
regulatory analysis ignored ``evidence of adverse
[[Page 17237]]
health impacts from the very long working hours associated with HOS
violations.'' Furthermore, by not proposing to mandate EOBR use,
Advocates held the Agency was not helping ``to ameliorate the adverse
health impacts of exceptionally long working and driving hours
triggered by the Agency's final rules in 2003 and in 2005.''
Response: The Agency has addressed both positive and negative
health impacts in Appendix A to the EA for this rule, which has been
placed in the docket. The Agency carefully reviewed research on the
potentially negative impacts of electronic monitoring and concluded
that the use of EOBRs required in today's final rule will not result in
negative impacts on driver health for two reasons: First, because
monitoring of HOS compliance is an existing, not a new, requirement;
and second, because the Agency is requiring EOBRs to monitor safety,
not workplace productivity.
The Agency has also not been able to statistically quantify
significant health benefits from improved HOS compliance, although at
least some benefits are anticipated to result, for at least some
drivers. Cost and benefit estimates of the HOS regulations are included
in the analysis for that separate rulemaking 72 FR 71247 (Dec. 17,
2007). In addition, the underlying HOS regulations are the subject of a
separate rulemaking action 72 FR 71247 (Dec. 17, 2007).
V. Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
Under Executive Order 12866 (58 FR 51735, October 4, 1993) and DOT
policies and procedures, FMCSA must determine whether a regulatory
action is ``significant,'' and therefore subject to Office of
Management and Budget (OMB) review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal government or communities.
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency.
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof.
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
FMCSA has determined this rule will have an annual effect of $100
million or more, and is, therefore, an economically significant
regulatory action within the meaning of the Executive Order and under
the regulatory policies and procedures of DOT because of the level of
public interest in rulemakings related to hours-of-service (HOS)
compliance. The Agency has therefore conducted an RIA of the costs and
benefits of this rule. The RIA is summarized below. The full analysis
is available in the docket.
After reconsidering the discussion in the NPRM, and based on
comments received, FMCSA examined two regulatory options for the final
rule--the 2 x 10 remedial directive proposed in the NPRM, and the
considerably broader and more stringent 1 x 10 remedial directive. We
understand the concerns of ATA and J.B. Hunt, among others, who believe
the proposal did not cover enough carriers. While FMCSA acknowledges
the safety concerns of those that support an industry-wide EOBR
mandate, the Agency cannot extend the EOBR mandate in that manner in
this final rule because the scope of the current rulemaking proceeding
is limited to a compliance-based regulatory approach, implemented
through a remedial directive. However, the number of motor carriers
that will be required to install, use and maintain EOBRs is
significantly greater under this final rule--using the 1 x 10 trigger--
than under the 2 x 10 trigger that was proposed in the NPRM. The RIA
examines the costs and benefits of two regulatory options, the 2 x 10
and the 1 x 10 remedial directives.
Cost information was gathered from publicly available marketing
materials and contact with EOBR vendors. The RIA focuses on the least
expensive device determined to be compliant with the rule.\4\ We do not
expect all carriers to use this specific device, only that it
represents a device at the low end of the cost range of an EOBR that
the Agency believes would be compliant with the provisions of the final
rule.
---------------------------------------------------------------------------
\4\ The least expensive device that satisfies the requirements
of the rule was found to be the RouteTracker sold by Turnpike
Global. Cost data are based on the use of this device with the
Sprint network.
---------------------------------------------------------------------------
For many carriers, this rule would not require new equipment. Some
carriers already use AOBRDs, AOBRDs with enhanced functionality, or
onboard systems with EOBR functionality, which the rule will allow them
to continue using provided certain conditions are met. These carriers
are excluded from cost and benefit calculations when appropriate. Other
carriers employ Fleet Management Systems (FMS) that are capable of
fulfilling this rule's requirements with the activation of available
hardware or software functions. Estimates of costs are lower for
carriers that already have partial or complete EOBR functionality.
Costs were estimated on an annualized basis over a ten-year
horizon. Costs and benefits that accrue throughout the year are
presented at their present value at the beginning of the year. Training
time costs for drivers, administrative staff, and State enforcement
personnel were estimated. The analysis estimates the cost to carriers
of coming into compliance with HOS and corresponding safety benefits as
induced through EOBR use. Cost savings on paper log purchase, use, and
processing are also assessed.
Safety benefits of EOBR use are assessed by estimating reductions
in HOS violations and resulting reductions in fatigue-related crashes.
Other non-safety health effects (positive and negative) for drivers, as
a result of the potential decreased driving time based on increased
pressure on drivers to comply with the HOS regulations, are considered
but not quantified in this analysis.
The estimates of the total net benefits are presented below: Of the
two regulatory options, the 1 x 10 remedial directive yields higher
total net benefit.
[[Page 17238]]
Total Annual Net Benefits
[Millions]
----------------------------------------------------------------------------------------------------------------
Regulatory option 1: 1 x Regulatory option 2: 2 x
10 remedial directive 10 remedial directive
----------------------------------------------------------------------------------------------------------------
Total Costs................................................. ($139) ($14)
Total Benefits.............................................. 182 22
---------------------------------------------------
Net Benefits............................................ 43 8
----------------------------------------------------------------------------------------------------------------
Additionally, the overall crash rates of both the 1 x 10 remedial
directive motor carriers and the 2 x 10 remedial directive motor
carriers are considerably higher than the crash rates of the general
motor carrier population. Using data from MCMIS and compliance review
databases, crash rates were computed by dividing total crashes by each
carrier's number of power units. The Agency compared crash rates
between the general motor carrier population and 1 x 10 remedial
directive motor carriers as well as between the general motor carrier
population and 2 x 10 remedial directive motor carriers. The 1 x 10
remedial directive motor carriers were found to have a 40 percent
higher crash rate than that of other carriers that have undergone
compliance reviews, and 2 x 10 remedial directive motor carriers had a
90 percent higher crash rate than that of other carriers that have
undergone compliance reviews. The final rule's application of a
remedial directive to the 1 x 10 remedial directive motor carriers
makes the best use of Agency resources and provides considerably higher
net benefits to society.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 5 U.S.C.
601 et seq.), requires agencies to consider the impact of regulations
on small businesses, small non-profit organizations, and small
governmental jurisdictions, unless the Agency determines that a rule is
not expected to have a significant economic impact on a substantial
number of small entities (SEISNOSE). The remedial directive aspect of
this rule will be applicable to about 2,800 motor carriers in the first
year and 5,700 motor carriers each year thereafter. The Agency
estimates that the total net cost of this rule will be less than $100
per power unit per year, compared to revenues of over $100,000 per
power unit per year. Based on the number of carriers affected and the
overall cost impact to these carriers, the Agency does not expect this
rule to have a SEISNOSE. The Agency has prepared a small business
impact analysis for this rule that discusses its estimates of small
business impacts. This analysis has been placed in the docket.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from OMB for each
collection of information they conduct, sponsor, or require through
regulations. The FMCSA determined that this rule will affect the OMB
Control Number 2126-0001, ``Hours of Service of Drivers Regulation,
Supporting Documents,'' information collection request (ICR), approved
at 184,380,000 burden hours through December 31, 2011. The PRA requires
agencies to provide a specific, objectively supported estimate of
burden hours that will be imposed by the information collection. See 5
CFR 1320.8. The requirement triggering the paperwork burden imposed by
FMCSA's records of duty status requirement is set forth at 49 CFR
395.8.
The FMCSA estimated that the remedial provisions of this final
rule, requiring the installation, use, and maintenance of EOBRs by
motor carriers with a threshold rate of serious HOS violations, would
affect approximately 5,700 motor carriers that employ 129,000 drivers
annually. The use of EOBRs will reduce the annual burden hours for
FMCSA's information collection OMB Control Number 2126-0001 by
3,110,000 hours. The FMCSA's revised estimate of the annual burden of
the IC is 181,270,000 hours (184,380,000-3,110,000).
A supporting statement reflecting this assessment will be submitted
to OMB together with this final rule.
Privacy Impact Assessment
Section 522(a)(5) of the Transportation, Treasury, Independent
Agencies, and General Government Appropriations Act, 2005, (Pub. L.
108-447, div. H, 118 Stat. 2809, 3268) requires the Department of
Transportation and certain other Federal agencies to conduct a privacy
impact assessment (PIA) of each proposed rule that will affect the
privacy of individuals. The Agency conducted a PIA for the NPRM, and we
have augmented the PIA for this final rule and placed the revised
version in the docket. Although the Agency determined that the same
personally identifiable information (PII) for CMV drivers currently
collected as part of the RODS and supporting documents requirements
would continue to be collected under this rulemaking, it recognized the
significance of the decision to require, even in limited circumstances,
that PII previously kept in paper copy now be kept electronically.
Privacy was a significant consideration in FMCSA's development of this
proposal. As stated earlier, we recognize that the need for a
verifiable EOBR audit trail--a detailed set of records to verify time
and physical location data for a particular CMV--must be
counterbalanced by privacy considerations. The Agency considered, but
rejected, certain alternative technologies to monitor drivers' HOS
(including in-cab video cameras and bio-monitors) as too invasive of
personal privacy. All CMV drivers subject to 49 CFR part 395 must have
their HOS accounted for to ensure they have adequate opportunities for
rest. This final rule would not change the Agency's policies,
practices, or regulations regarding its own collection and storage of
HOS records of individual drivers whose RODS are reviewed. The expanded
review procedures under the random review incentive, however, would
enlarge the population of drivers whose RODS are reviewed for those
carriers. It would also change the technology by which compliance is to
be documented, in a way that facilitates both the sharing of
information and its capacity to be data processed.
As before, the HOS information recorded on EOBRs would be
accessible to Federal and State enforcement personnel only when
compliance assurance activities are conducted at the facilities of
motor carriers subject to the RODS requirement or when the CMVs of
those carriers are inspected at roadside. Motor carriers would not be
required to upload this information into Federal or
[[Page 17239]]
State information systems accessible to the public. This would aid data
security and ensure that general EOBR data collection does not result
in a new or revised Privacy Act System of Records for FMCSA. (Evidence
of violation of any FMCSA requirements uncovered during either of these
activities is transferred to a DOT/FMCSA Privacy Act record system.)
Data accuracy concerning drivers' RODS should improve as a result of
the new performance standards for EOBRs, allowing drivers to make EOBR
entries to identify any errors or inconsistencies in the data, and
mandating EOBR use by motor carriers with a history of serious HOS
noncompliance.
What would change, and change significantly, is the capacity of
this data to be processed and converted to more usable information for
the purpose of determining drivers' and motor carriers' compliance with
the HOS regulations. Although no CMV operator would be required to
upload this data to a Federal or State database accessible to the
public, the electronic formulation of the data would make it easier for
a CMV operator to keep track of the activities of its drivers.
Similarly, Federal and State law enforcement and safety authorities,
including FMCSA, would be better able to do the same. As shown in other
contexts, the increased accessibility, accuracy, and reliability of
geospatial location information has made electronically generated and
preserved data attractive to a variety of audiences. On balance, we
must compel use of these devices in those situations described in this
rule. The entire privacy impact assessment is available in the docket
for this rule.
Unfunded Mandates Reform Act
This rule would not result in the net expenditure by State, local
and Tribal governments, in the aggregate, or by the private sector, of
$141,300,000 or more in any one year, nor would it affect small
governments. Therefore, no actions are deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Executive Order 13132 (Federalism)
This rulemaking would not preempt or modify any provision of State
law, impose substantial direct unreimbursed compliance costs on any
State, or diminish the power of any State to enforce its own laws.
Accordingly, this rulemaking does not have Federalism implications
warranting the application of Executive Order 13132.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
rule.
National Environmental Policy Act
The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.
4321 et seq., as amended) requires Federal agencies to consider the
consequences of, and prepare a detailed statement on, all major Federal
actions significantly affecting the quality of the human environment.
In accordance with its procedures for implementing NEPA (FMCSA Order
5610.1, Chapter 2.D.4(c) and Appendix 3), FMCSA prepared an EA to
review the potential impacts of this rulemaking. The EA findings are
summarized below. The full EA is in the docket.
Implementation of this action would alter to some extent the
operation of CMVs. However, the rule will not require any new
construction or change significantly the number of CMVs in operation.
FMCSA found, therefore, that noise, hazardous materials, endangered
species, cultural resources protected under the National Historic
Preservation Act, wetlands, and resources protected under Section 4(f)
of the Department of Transportation Act would not be impacted by the
rule.
The EA also examined impacts on air quality and public safety. We
anticipate that drivers of CMVs operated by carriers that have been
issued an EOBR remedial directive will now take the full off-duty
periods required by the HOS rules. During off-duty periods, drivers
frequently leave the CMV parked in ``idle,'' which increases engine
emissions on a per-mile basis. Hence, drivers for remediated carriers
will cause a modest overall increase in engine emissions by virtue of
additional drivers coming into compliance with the HOS regulations.
Because the number of trucks likely to be required to install EOBRs is
relatively small (139,000 out of 4.2 million total CMVs), FMCSA
determined that the increase in air toxics would be negligible.
Moreover, because drivers for carriers brought into HOS compliance will
experience less fatigue and be less likely to have fatigue-related
crashes, there will be a counterbalancing increase in public safety.
FMCSA concludes that the rule changes will have a negligible impact
on the environment. The provisions under the action do not,
individually or collectively, pose any significant environmental
impact. Therefore, this rule change will not require an environmental
impact statement. Consequently, FMCSA issues a Finding of No
Significant Impact (FONSI) in the EA for this final rule.
Executive Order 13211 (Energy Supply, Distribution or Use)
FMCSA determined that the rule will not significantly affect energy
supply, distribution, or use. No Statement of Energy Effects is
therefore required.
Executive Order 12898 (Environmental Justice)
FMCSA considered the effects of this final rule in accordance with
Executive Order 12898 and DOT Order 5610.2 on addressing Environmental
Justice for Minority Populations and Low-Income Populations, published
April 15, 1997 (62 FR 18377) and determined that there are no
environmental justice issues associated with this rule or any
collective environmental impact resulting from its promulgation.
Environmental justice issues would be raised if there were
``disproportionate'' and ``high and adverse impact'' on minority or
low-income populations. None of the regulatory options considered in
this rulemaking will result in high and adverse environmental impacts.
Executive Order 13045 (Protection of Children)
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires
agencies issuing ``economically significant'' rules, if the regulation
also concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. Although the rule is economically significant, it will
improve safety; the rule also would not have a disproportionate affect
on children. Therefore, FMCSA has determined that an analysis of the
impacts on children is not required.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 12630 (Taking of Private Property)
This rule will not effect a taking of private property or otherwise
have
[[Page 17240]]
taking implications under E. O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) requires Federal agencies proposing to adopt Government technical
standards to consider whether voluntary consensus standards are
available. If the Agency chooses to adopt its own standards in place of
existing voluntary consensus standards, it must explain its decision in
a separate statement to OMB.
FMCSA determined there are no voluntary national consensus
standards for the design of EOBRs as complete units. However, there are
many voluntary consensus standards concerning communications and
information interchange methods that could be referenced as part of
comprehensive performance-based requirements for EOBRs to ensure their
reliable and consistent utilization by motor carriers and motor carrier
safety compliance assurance officials. For example, the digital
character set would reference the ASCII (American Standard Code for
Information Interchange) character set specifications, the most widely
used form of which is ANSI X3.4-1986. This is described in the
``American National Standard for Information Systems--Coded Character
Sets--7-Bit American National Standard Code for Information Interchange
(7-Bit ASCII) (ANSI document ANSI INCITS 4-1986 (R2007))
published by the American National Standards Institute (ANSI). The
standard is available by contacting the American National Standards
Institute, 11 West 42nd Street, New York, New York 10036, or by
visiting the ANSI Web site at http://webstore.ansi.org. In another
example, the Agency would reference the 802.11g-2003 standard as
defined in the 802.11-2007 base standard for wireless communication
published by IEEE (Institute of Electrical and Electronics Engineers).
We did review and evaluate the European Commission Council
Regulations 3821/85 (analog tachograph) and 2135/98 (digital
tachograph). These are not voluntary standards, but rather are design-
specific type-certification programs. We concluded these standards lack
several features and functions (such as CMV location tracking and the
ability for the driver to enter remarks) that FMCSA has included in its
performance-based final rule, and require other features (such as an
integrated license document on the driver's data card) that are not
appropriate for U.S. operational practices.
List of Subjects
49 CFR Part 350
Grant programs--transportation, Highway safety, Motor carriers,
Motor vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 385
Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety, Reporting and recordkeeping.
49 CFR Part 395
Highway safety, Incorporation by reference, Motor carriers,
Reporting and recordkeeping.
49 CFR Part 396
Highways and roads, Motor carriers, Motor vehicle equipment, Motor
vehicle safety.
0
For the reasons stated in the preamble, FMCSA amends 49 CFR chapter III
as set forth below:
PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM
0
1. The authority citation for part 350 is revised to read as follows:
Authority: 49 U.S.C. 13902, 31101-31104, 31108, 31136, 31140-
31141, 31161, 31310-31311, 31502; and 49 CFR 1.73.
0
2. Amend Sec. 350.201 by revising the introductory text and adding a
new paragraph (z) to read as follows:
Sec. 350.201 What conditions must a State meet to qualify for Basic
Program Funds?
Each State must meet the following 26 conditions:
* * * * *
(z) Enforce requirements relating to FMCSA remedial directives
issued in accordance with 49 CFR part 385, subpart J, including
providing inspection services for verification of electronic on-board
recorder installation and operation as provided in Sec. 385.811(b).
PART 385--SAFETY FITNESS PROCEDURES
0
3. Revise the authority citation for part 385 to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec.
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350, Pub. L.
107-87; and 49 CFR 1.73.
0
4. Amend Sec. 385.1 by revising paragraph (a) to read as follows:
Sec. 385.1 Purpose and scope.
(a) This part establishes FMCSA's procedures to determine the
safety fitness of motor carriers, to assign safety ratings, to direct
motor carriers to take remedial action when required, and to prohibit
motor carriers determined to be unfit from operating a CMV.
* * * * *
0
5. Amend Sec. 385.3 by adding a definition for the term ``safety
fitness determination'' in alphabetical order, by removing the existing
definition for the term ``safety ratings,'' and by adding a new
definition for the term ``safety rating or rating'' to read as follows:
Sec. 385.3 Definitions and acronyms.
* * * * *
Safety fitness determination means the final determination by FMCSA
that a motor carrier meets the safety fitness standard under Sec.
385.5.
Safety rating or rating means a rating of ``Satisfactory,''
``Conditional'' or ``Unsatisfactory,'' which the FMCSA assigns to a
motor carrier using the factors prescribed in Sec. 385.7, as computed
under the Safety Fitness Rating Methodology (SFRM) set forth in
Appendix B to this part and based on the carrier's demonstration of
adequate safety management controls under Sec. 385.5(a). A safety
rating of ``Satisfactory'' or ``Conditional'' is necessary, but not
sufficient, to meet the overall safety fitness standard under Sec.
385.5.
(1) Satisfactory safety rating means that a motor carrier has in
place and functioning safety management controls adequate to meet that
portion of the safety fitness standard prescribed in Sec. 385.5(a).
Safety management controls are adequate for this purpose if they are
appropriate for the size and type of operation of the particular motor
carrier.
(2) Conditional safety rating means a motor carrier does not have
adequate safety management controls in place to ensure compliance with
that portion of the safety fitness standard prescribed in Sec.
385.5(a), which could result in occurrences listed in Sec. 385.5(a)(1)
through (a)(11).
(3) Unsatisfactory safety rating means a motor carrier does not
have adequate safety management controls in place to ensure compliance
with that portion of the safety fitness standard prescribed in Sec.
385.5(a), and this has resulted in occurrences listed in Sec.
385.5(a)(1) through (a)(11).
(4) Unrated carrier means that the FMCSA has not assigned a safety
rating to the motor carrier.
[[Page 17241]]
0
6. Revise Sec. 385.5 to read as follows:
Sec. 385.5 Safety fitness standard.
A motor carrier must meet the safety fitness standard set forth in
this section. Intrastate motor carriers subject to the hazardous
materials safety permit requirements of subpart E of this part must
meet the equivalent State requirements. To meet the safety fitness
standard, the motor carrier must demonstrate the following:
(a) It has adequate safety management controls in place, which
function effectively to ensure acceptable compliance with applicable
safety requirements to reduce the risk associated with:
(1) Commercial driver's license standard violations (part 383 of
this chapter),
(2) Inadequate levels of financial responsibility (part 387 of this
chapter),
(3) The use of unqualified drivers (part 391 of this chapter),
(4) Improper use and driving of motor vehicles (part 392 of this
chapter),
(5) Unsafe vehicles operating on the highways (part 393 of this
chapter),
(6) Failure to maintain accident registers and copies of accident
reports (part 390 of this chapter),
(7) The use of fatigued drivers (part 395 of this chapter),
(8) Inadequate inspection, repair, and maintenance of vehicles
(part 396 of this chapter),
(9) Transportation of hazardous materials, driving and parking rule
violations (part 397 of this chapter),
(10) Violation of hazardous materials regulations (parts 170
through 177 of this title), and
(11) Motor vehicle accidents, as defined in Sec. 390.5 of this
chapter, and hazardous materials incidents.
(b) The motor carrier has complied with all requirements contained
in any remedial directive issued under subpart J of this part.
0
7. Amend Sec. 385.9 by revising paragraph (a) to read as follows:
Sec. 385.9 Determination of a safety rating.
(a) Following a compliance review of a motor carrier operation,
FMCSA, using the factors prescribed in Sec. 385.7 as computed under
the Safety Fitness Rating Methodology set forth in Appendix B to this
part, shall determine whether the present operations of the motor
carrier are consistent with that portion of the safety fitness standard
set forth in Sec. 385.5(a), and assign a safety rating accordingly.
* * * * *
0
8. Amend Sec. 385.11 by revising the section heading and adding
paragraph (g) to read as follows:
Sec. 385.11 Notification of safety rating and safety fitness
determination.
* * * * *
(g) If a motor carrier is subject to a remedial directive and
proposed determination of unfitness under subpart J of this part, the
notice of remedial directive will constitute the notice of safety
fitness determination. If FMCSA has not issued a notice of remedial
directive and proposed determination of unfitness under subpart J of
this part, a notice of a proposed or final safety rating will
constitute the notice of safety fitness determination.
0
9. Amend Sec. 385.13 by adding paragraph (e) as follows:
Sec. 385.13 Unsatisfactory rated motor carriers; prohibition on
transportation; ineligibility for Federal contracts.
* * * * *
(e) Revocation of operating authority. If a proposed
``unsatisfactory'' safety rating or a proposed determination of
unfitness becomes final, the FMCSA will, following notice, issue an
order revoking the operating authority of the owner or operator. For
purposes of this section, the term ``operating authority'' means the
registration required under 49 U.S.C. 13902 and Sec. 392.9a of this
subchapter. Any motor carrier that operates CMVs after revocation of
its operating authority will be subject to the penalty provisions
listed in 49 U.S.C. 14901.
0
10. Amend Sec. 385.15 by revising paragraph (a) to read as follows:
Sec. 385.15 Administrative review.
(a) A motor carrier may request the FMCSA to conduct an
administrative review if it believes FMCSA has committed an error in
assigning its proposed safety rating in accordance with Sec. 385.11(c)
or its final safety rating in accordance with Sec. 385.11(b).
* * * * *
0
11. Amend Sec. 385.17 by adding paragraphs (k) and (l) to read as
follows:
Sec. 385.17 Change to safety rating based upon corrective actions.
* * * * *
(k) An upgraded safety rating based upon corrective action under
this section will have no effect on an otherwise applicable notice of
remedial directive, or proposed determination of unfitness issued in
accordance with subpart J of this part.
(l) A motor carrier may not request a rescission of a determination
of unfitness issued under subpart J of this part based on corrective
action.
0
12. Amend Sec. 385.19 by revising paragraphs (a) and (b) to read as
follows:
Sec. 385.19 Safety fitness information.
(a) Final safety ratings, remedial directives, and safety fitness
determinations will be made available to other Federal and State
agencies in writing, telephonically, or by remote computer access.
(b) The final safety rating, any applicable remedial directive(s),
and the safety fitness determination pertaining to a motor carrier will
be made available to the public upon request. Any person requesting
information under this paragraph must provide FMCSA with the motor
carrier's name, principal office address, and, if known, the USDOT
Number or the Interstate Commerce Commission MC (ICCMC) docket number
if any.
* * * * *
0
13. Amend Sec. 385.407 by revising paragraph (a) to read as follows:
Sec. 385.407 What conditions must a motor carrier satisfy for FMCSA
to issue a safety permit?
(a) Motor carrier safety performance. (1) The motor carrier:
(i) Must be in compliance with any remedial directive issued under
subpart J of this part, and
(ii) Must have a ``Satisfactory'' safety rating assigned by either
FMCSA, under the Safety Fitness Procedures of this part, or the State
in which the motor carrier has its principal place of business, if the
State has adopted and implemented safety fitness procedures that are
equivalent to the procedures in subpart A of this part.
(2) FMCSA will not issue a safety permit to a motor carrier that:
(i) Does not certify that it has a satisfactory security program as
required in Sec. 385.407(b);
(ii) Has a crash rate in the top 30 percent of the national average
as indicated in FMCSA Motor Carrier Management Information System
(MCMIS); or
(iii) Has a driver, vehicle, hazardous materials, or total out-of-
service rate in the top 30 percent of the national average as indicated
in the MCMIS.
* * * * *
0
14. Amend part 385 by adding a new subpart J consisting of new
Sec. Sec. 385.801 through 385.819 to read as follows:
Subpart J--Remedial Directives
Sec.
385.801 Purpose and scope.
385.803 Definitions and acronyms.
385.805 Events triggering issuance of remedial directive and
proposed determination of unfitness.
385.807 Notice and issuance of remedial directive.
385.809 [Reserved]
[[Page 17242]]
385.811 Proof of compliance with remedial directive.
385.813 Issuance and conditional rescission of proposed unfitness
determination.
385.815 Exemption for AOBRD users.
385.817 Administrative review.
385.819 Effective of failure to comply with remedial directive.
Subpart J--Remedial Directives
Sec. 385.801 Purpose and scope.
(a) This subpart establishes procedures for FMCSA's issuance of
notices of remedial directives and proposed determinations of
unfitness.
(b) This subpart establishes the circumstances under which FMCSA
will direct motor carriers (including owner-operators leased to motor
carriers, regardless of whether the owner-operator has separate
operating authority under part 365), in accordance with Sec. 385.1(a),
to install electronic on-board recorders (EOBRs) in their commercial
motor vehicles as a remedy for threshold rate violations, as defined by
Sec. 385.803, of the part 395 hours-of-service regulations listed in
Appendix C to this part.
(c) This subpart establishes the procedures by which motor carriers
may challenge FMCSA's issuance of proposed determinations of unfitness
and remedial directives.
(d) The provisions of this subpart apply to all motor carriers
subject to the requirements of part 395 of this chapter.
Sec. 385.803 Definitions and acronyms.
(a) The definitions in subpart A of this part and part 390 of this
chapter apply to this subpart, except where otherwise specifically
noted.
(b) As used in this subpart, the following terms have the meaning
specified:
Appendix C regulation means any of the regulations listed in
Appendix C to Part 385 of this chapter.
Appendix C violation means a violation of any of the regulations
listed in Appendix C to part 385 of this chapter.
Electronic on-board recording device (EOBR) means an electronic
device that is capable of recording a driver's duty hours of service
and duty status accurately and automatically and that meets the
requirements of Sec. 395.16 of this chapter.
Final determination for purposes of part 385, subpart J means:
(1) An adjudication under this subpart upholding a notice of
remedial directive and proposed unfitness determination;
(2) The expiration of the period for filing a request for
administrative review of remedial directive and proposed unfitness
determination under this subpart; or
(3) The entry of a settlement agreement stipulating that the
carrier is subject to mandatory EOBR installation, use, and maintenance
requirements.
Motor carrier includes owner-operators leased to carriers subject
to a remedial directive, regardless of whether the owner-operator has
separate operating authority under part 365 of this chapter.
Proposed determination of unfitness or proposed unfitness
determination means a determination by FMCSA that a motor carrier will
not meet the safety fitness standard under Sec. 385.5 on a specified
future date unless the carrier takes the actions necessary to comply
with the terms of a remedial directive issued under this subpart.
Remedial directive means a mandatory instruction from FMCSA to take
one or more specified action(s) as a condition of demonstrating safety
fitness under 49 U.S.C. 31144(b).
Threshold rate violation for the purposes of this subpart means a
violation rate for any Appendix C regulation equal to or greater than
10 percent of the number of records reviewed.
Sec. 385.805 Events triggering issuance of remedial directive and
proposed determination of unfitness.
A motor carrier subject to 49 CFR part 395 will be subject to a
remedial directive and proposed unfitness determination in accordance
with this subpart for threshold rate violations of any Appendix C
regulation or regulations that have been documented during a compliance
review. A remedial directive and proposed unfitness determination will
be issued if a compliance review conducted on the motor carrier
resulted in a final determination of one or more threshold rate
violations of any Appendix C regulation are discovered.
Sec. 385.807 Notice and issuance of remedial directive.
(a) Following the close of the compliance review described in Sec.
385.805(a), FMCSA will issue the motor carrier a written notice of
remedial directive and proposed determination of unfitness. FMCSA will
issue the notice and proposed determination as soon as practicable, but
not later than 30 days after the close of the review.
(b) The remedial directive will state that the motor carrier is
required to install and maintain EOBRs compliant with Sec. 395.16 of
this chapter in all of the motor carrier's CMVs and to use the EOBRS to
record its drivers' hours of service pursuant to Sec. 395.16. The
motor carrier shall provide proof of the installation to FMCSA in
accordance with Sec. 385.811 within the following time periods:
(1) Motor carriers transporting hazardous materials in quantities
requiring placarding, and motor carriers transporting passengers in a
CMV, must install EOBRs and provide proof of the installation by the
45th day after the date of the notice of remedial directive.
(2) All other motor carriers must install EOBRs and provide proof
of installation by the 60th day after the date of FMCSA's notice of
remedial directive. If FMCSA determines the motor carrier is making a
good-faith effort to comply with the terms of the remedial directive,
FMCSA may allow the motor carrier to operate for up to 60 additional
days.
(3) A motor carrier may challenge the notice of remedial directive
and proposed determination of unfitness in accordance with Sec.
385.817.
Sec. 385.809 [Reserved]
Sec. 385.811 Proof of compliance with remedial directive.
(a) Motor carriers subject to a remedial directive to install EOBRs
under this section must provide proof of EOBR installation by one of
the following:
(1) Submitting all of the carrier's CMVs for visual and functional
inspection by FMCSA or qualified State enforcement personnel.
(2) Transmitting to the FMCSA service center for the geographic
area where the carrier maintains its principal place of business all of
the following documentation:
(i) Receipts for all necessary EOBR purchases.
(ii) Receipts for the installation work.
(iii) Digital or other photographic evidence depicting the
installed devices in the carrier's CMVs.
(iv) Documentation of the EOBR serial number for the specific
device corresponding to each CMV in which the device has been
installed.
(3) If no receipt is submitted for an installed device or the
installation work in accordance with paragraph (a)(2) of this section,
the carrier must submit a written statement explaining who installed
the devices, how many devices were installed, the manufacturer and
model numbers of the devices installed, and the vehicle identification
numbers of the CMVs in which the devices were installed.
(b) Visual and functional EOBR inspections may be performed at any
[[Page 17243]]
FMCSA roadside inspection station or at the roadside inspection or
weigh station facility of any State that receives Motor Carrier Safety
Assistance Program funds under 49 U.S.C. 31102 and that provides such
inspection services. The carrier may also request such inspections be
performed at its principal place of business.
(c) Motor carriers issued remedial directives pursuant to this
section must install in all of their CMVs EOBRs meeting the standards
set forth in 49 CFR 395.16. Such motor carriers must maintain and use
the EOBRs to verify compliance with part 395 for a period of 2 years
following the issuance of the remedial directive. In addition to any
other requirements imposed by the FMCSRs, during the period of time the
carrier is subject to a remedial directive the carrier must maintain
all records and reports generated by the EOBRs and, upon demand,
produce those records to FMCSA personnel.
(d) Malfunctioning devices. Motor carriers subject to remedial
directives shall maintain EOBRs installed in their CMVs in good working
order. Such carriers must cause any malfunctioning EOBR to be repaired
or replaced within 14 days from the date the carrier becomes aware of
the malfunction. During this repair or replacement period, carriers
subject to a remedial directive under this part must prepare a paper
record of duty status pursuant to Sec. 395.8 of this chapter as a
temporary replacement for the non-functioning EOBR unit. All other
provisions of the remedial directive will continue to apply during the
repair and replacement period. Failure to comply with the terms of this
paragraph may subject the affected CMV and/or driver to an out-of-
service order pursuant to Sec. 396.9(c) and Sec. 395.13 of this
chapter, respectively. Repeated violations of this paragraph may
subject the motor carrier to the provisions of Sec. 385.819.
Sec. 385.813 Issuance and conditional rescission of proposed
unfitness determination.
(a) Simultaneously with the notice of remedial directive, FMCSA
will issue a proposed unfitness determination. The proposed unfitness
determination will explain that, if the motor carrier fails to comply
with the terms of the remedial directive, the carrier will be unfit
under the fitness standard in Sec. 385.5, prohibited from engaging in
interstate operations and intrastate operations affecting interstate
commerce, and, in the case of a carrier registered under 49 U.S.C.
13902, have its registration revoked.
(b) FMCSA will conditionally rescind the proposed determination of
unfitness upon the motor carrier's submission of sufficient proof of
EOBR installation in accordance with Sec. 385.811.
(c) During the period the remedial directive is in effect, FMCSA
may reinstate the proposed unfitness determination and immediately
prohibit the motor carrier from operating in interstate commerce and
intrastate operations affecting interstate commerce if the motor
carrier violates the provisions of the remedial directive.
Sec. 385.815 Exemption for AOBRD users.
(a) Upon written request by the motor carrier, FMCSA will grant an
exception from the requirements of remedial directives under this
section to motor carriers that already had installed in all commercial
motor vehicles, at the time of the compliance review immediately
preceding the issuance of the notice of remedial directive, AOBRDs
compliant with 49 CFR 395.15 of this chapter.
(b) The carrier will be permitted to continue using the previously
installed devices if the carrier can satisfactorily demonstrate to
FMCSA that the carrier and its employees understand how to use the
AOBRDs and the information derived from them.
(c) The carrier must either use and maintain the AOBRDs currently
in its CMVs or install new devices compliance with Sec. 395.16 of this
chapter.
(d) Although FMCSA may suspend enforcement for noncompliance with
the remedial directive, the directive will remain in effect; and the
hours-of-service compliance of any motor carrier so exempted, will be
subject to ongoing FMCSA oversight.
(e) The exemption granted under this section shall not apply to
CMVs manufactured on or after the date 2 years from the effective date
of this rule.
Sec. 385.817 Administrative review.
(a) A motor carrier may request FMCSA to conduct an administrative
review if the carrier believes FMCSA has committed an error in issuing
a notice of remedial directive under Sec. 385.807 and proposed
unfitness determination under Sec. 385.813. Administrative reviews of
notices of remedial directive and proposed unfitness determinations are
limited to findings in the compliance review immediately preceding the
notice.
(b) The motor carrier's request must explain the error it believes
FMCSA committed in issuing the notice of remedial directive and
proposed unfitness determination. The motor carrier must include a list
of all factual and procedural issues in dispute and any information or
documents that support its argument.
(c) The motor carrier must submit its request in writing to the
Assistant Administrator, Federal Motor Carrier Safety Administration,
1200 New Jersey Avenue, SE., Washington, DC 20590. The motor carrier
must submit on the same day a copy of the request to FMCSA counsel in
the FMCSA service center for the geographic area where the carrier
maintains its principal place of business.
(1) If a motor carrier has received a notice of remedial directive
and proposed unfitness determination, the carrier should submit its
request in writing within 15 days from the date of the notice. This
timeframe will allow FMCSA to issue a written decision before the
prohibitions outlined in Sec. 385.819(a) take effect. If the carrier
submits its request for administrative review within 15 days of the
issuance of the notice of remedial directive and proposed unfitness
determination, FMCSA will stay the finality of the proposed unfitness
determination until the Agency has ruled on the carrier's request.
Failure to submit the request within this 15-day period may prevent
FMCSA from ruling on the request before the prohibitions take effect.
(2) A motor carrier must make a request for an administrative
review within 90 days after the date of the notice of remedial
directive and proposed determination of unfitness under Sec. 385.807.
(d) FMCSA may request the motor carrier to submit additional data
or attend a conference to discuss the request for review. If the motor
carrier does not provide the information requested, or does not attend
the conference, FMCSA may dismiss its request for review.
(e) FMCSA will notify the motor carrier in writing of its decision
following the administrative review. FMCSA will complete its review:
(1) Within 30 days after receiving a request from a hazardous
materials or passenger motor carrier that has received a proposed
unfitness determination;
(2) Within 45 days after receiving a request from any other motor
carrier that has received a proposed unfitness determination;
(3) With respect to requests for administrative review of notices
of remedial directive, as soon as practicable but not later than 60
days after receiving the request.
(f) The decision regarding a proposed unfitness determination
constitutes final Agency action.
[[Page 17244]]
(g) The provisions of this section will not affect procedures for
administrative review of proposed or final safety ratings in accordance
with Sec. 385.15 or for requests for changes to safety ratings based
upon corrective action in accordance with Sec. 385.17.
Sec. 385.819 Effect of failure to comply with remedial directive.
(a) A motor carrier that fails or refuses to comply with the terms
of a remedial directive issued under this subpart, including a failure
or refusal to provide proof of EOBR installation in accordance with
Sec. 385.811, does not meet the safety fitness standard set forth in
Sec. 385.5(b). With respect to such carriers, the proposed
determination of unfitness issued in accordance with Sec. 385.813
becomes final, and the motor carrier is prohibited from operating, as
follows:
(1) Motor carriers transporting hazardous materials in quantities
requiring placarding and motor carriers transporting passengers in a
CMV are prohibited from operating CMVs in interstate commerce and in
operations that affect interstate commerce beginning on the 46th day
after the date of FMCSA's notice of remedial directive and proposed
unfitness determination. A motor carrier subject to the registration
requirements of 49 U.S.C. 13901 will have its registration revoked on
the 46th day after the date of FMCSA's notice of remedial directive and
proposed unfitness determination.
(2) All other motor carriers are prohibited from operating a CMV in
interstate commerce and in operations that affect interstate commerce
beginning on the 61st day after the date of FMCSA's notice of remedial
directive and proposed unfitness determination. A motor carrier subject
to the registration requirements of 49 U.S.C. 13901 will have its
registration revoked on the 61st day after the date of FMCSA's notice
of remedial directive and proposed unfitness determination. If FMCSA
determines the motor carrier is making a good-faith effort to satisfy
the terms of the remedial directive, FMCSA may allow the motor carrier
to operate for up to 60 additional days.
(b) If a proposed unfitness determination becomes a final
determination, FMCSA will issue an order prohibiting the motor carrier
from operating in interstate commerce. If the motor carrier is required
to register under 49 U.S.C. 13901, FMCSA will revoke the motor
carrier's registration on the dates specified in Sec. 385.819(a)(1)
and (a)(2).
(c) If FMCSA has prohibited a motor carrier from operating in
interstate commerce under paragraph (a) of this section and, if
applicable, revoked the carrier's registration, and the motor carrier
subsequently complies with the terms and conditions of the remedial
directive and provides proof of EOBR installation under Sec. 385.811,
the carrier may request FMCSA to lift the prohibition on operations at
any time after the prohibition becomes effective. The request should be
submitted in writing in accordance with Sec. 385.817(c).
(d) A Federal Agency must not use for CMV transportation a motor
carrier that FMCSA has determined is unfit.
(e) Penalties. If a proposed unfitness determination becomes a
final determination, FMCSA will issue an order prohibiting the motor
carrier from operating in interstate commerce and any intrastate
operations that affect interstate commerce and, if applicable, revoking
its registration. Any motor carrier that operates a CMV in violation of
this section will be subject to the penalty provisions listed in 49
U.S.C. 521(b).
0
15. Amend Appendix B to part 385 by revising paragraphs (b), (c), and
(d) and section VI, paragraph (a), to read as follows:
Appendix B to Part 385--Explanation of Safety Rating Process
* * * * *
(b) As directed, FMCSA promulgated a safety fitness regulation,
entitled ``Safety Fitness Procedures,'' which established a
procedure to determine the safety fitness of motor carriers through
the assignment of safety ratings and established a ``safety fitness
standard'' that a motor carrier must meet to obtain a
``Satisfactory'' safety rating. FMCSA later amended the safety
fitness standard to add a distinct requirement that motor carriers
also be in compliance with applicable remedial directives.
(c) To meet the safety fitness standard, a motor carrier must
meet two requirements. First, the carrier must demonstrate to FMCSA
it has adequate safety management controls in place that function
effectively to ensure acceptable compliance with the applicable
safety requirements. (See Sec. 385.5(a)). A ``safety fitness rating
methodology'' (SFRM) developed by FMCSA uses data from compliance
reviews (CRs) and roadside inspections to rate motor carriers.
Second, a motor carrier must also be in compliance with any
applicable remedial directives issued in accordance with subpart J.
This second requirement is set forth in Sec. 385.5(b).
(d) The safety rating process developed by FMCSA is used to:
1. Evaluate the first component of the safety fitness standard,
under Sec. 385.5(a), and assign one of three safety ratings
(Satisfactory, Conditional, or Unsatisfactory) to motor carriers
operating in interstate commerce. This process conforms to Sec.
385.5(a), Safety fitness standard, and Sec. 385.7, Factors to be
considered in determining a safety rating.
2. Identify motor carriers needing improvement in their
compliance with the Federal Motor Carrier Safety Regulations
(FMCSRs) and applicable Hazardous Materials Regulations (HMRs).
These are carriers rated Unsatisfactory or Conditional.
* * * * *
VI. Conclusion
(a) FMCSA believes this ``safety fitness rating methodology'' is
a reasonable approach to assignment of a safety rating, as required
by the safety fitness regulations (Sec. 385.9), that most closely
reflects the motor carrier's current level of compliance with the
safety fitness standard in Sec. 385.5(a). This methodology has the
capability to incorporate regulatory changes as they occur.
* * * * *
0
16. Add Appendix C to part 385 to read as follows:
Appendix C to Part 385--Regulations Pertaining to Remedial Directives
in Part 385, Subpart J
Sec. 395.1(h)(1)(i) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive more than 15 hours (Driving
in Alaska).
Sec. 395.1(h)(1)(ii) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been
on duty 20 hours (Driving in Alaska).
Sec. 395.1(h)(1)(iii) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been
on duty more than 70 hours in 7 consecutive days (Driving in
Alaska).
Sec. 395.1(h)(1)(iv) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been
on duty more than 80 hours in 8 consecutive days (Driving in
Alaska).
Sec. 395.1(h)(2)(i) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive more than 15 hours
(Driving in Alaska).
Sec. 395.1(h)(2)(ii) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been
on duty 20 hours (Driving in Alaska).
Sec. 395.1(h)(2)(iii) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been
on duty more than 70 hours in 7 consecutive days (Driving in
Alaska).
Sec. 395.1(h)(2)(iv) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been
on duty more than 80 hours in 8 consecutive days (Driving in
Alaska).
Sec. 395.1(o) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive after having been on duty
16 consecutive hours.
Sec. 395.3(a)(1) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive more than 11 hours.
Sec. 395.3(a)(2) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive after the end of the 14th
hour after coming on duty.
Sec. 395.3(b)(1) Requiring or permitting a property-carrying
commercial motor vehicle
[[Page 17245]]
driver to drive after having been on duty more than 60 hours in 7
consecutive days.
Sec. 395.3(b)(2) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive after having been on duty
more than 70 hours in 8 consecutive days.
Sec. 395.3(c)(1) Requiring or permitting a property-carrying
commercial motor vehicle driver to restart a period of 7 consecutive
days without taking an off-duty period of 34 or more consecutive
hours.
Sec. 395.3(c)(2) Requiring or permitting a property-carrying
commercial motor vehicle driver to restart a period of 8 consecutive
days without taking an off-duty period of 34 or more consecutive
hours.
Sec. 395.5(a)(1) Requiring or permitting a passenger-carrying
commercial motor vehicle driver to drive more than 10 hours.
Sec. 395.5(a)(2) Requiring or permitting a passenger-carrying
commercial motor vehicle driver to drive after having been on duty
15 hours.
Sec. 395.5(b)(1) Requiring or permitting a passenger-carrying
commercial motor vehicle driver to drive after having been on duty
more than 60 hours in 7 consecutive days.
Sec. 395.5(b)(2) Requiring or permitting a passenger-carrying
commercial motor vehicle driver to drive after having been on duty
more than 70 hours in 8 consecutive days.
Sec. 395.8(a) Failing to require driver to make a record of
duty status.
Sec. 395.8(e) False reports of records of duty status.
Sec. 395.8(i) Failing to require driver to forward within 13
days of completion, the original of the record of duty status.
Sec. 395.8(k)(1) Failing to preserve driver's record of duty
status for 6 months.
Sec. 395.8(k)(1) Failing to preserve driver's records of duty
status supporting documents for 6 months.
PART 395--HOURS OF SERVICE OF DRIVERS
0
17. The authority citation for part 395 is revised to read as follows:
Authority: 49 U.S.C. 508, 13301, 13902, 31133, 31136, 31502,
31504, and Sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C.
701 note); Sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; Sec.
217, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49 CFR 1.73.
0
18. Amend Sec. 395.2 by adding the following definitions in
alphabetical order:
Sec. 395.2 Definitions.
* * * * *
CD-RW (Compact Disc--Re-Writeable) means an optical disc digital
storage format that allows digital data to be erased and rewritten many
times. The technical and physical specifications for CD-RW are
described in the document Orange Book Part III: CD-RW, published by
Royal Philips Electronics.
CMRS (Commercial Mobile Radio Services) An FCC designation for any
carrier or licensee whose wireless network is connected to the public
switched telephone network and/or is operated for profit. Another
common term for these entities is cellular telephony providers.
* * * * *
802.11 is a set of communications and product compatibility
standards for wireless local area networks (WLAN). The 802.11 standards
are also known as WiFi by marketing convention.
Electronic on-board recording device (EOBR) means an electronic
device that is capable of recording a driver's hours of service and
duty status accurately and automatically and that meets the
requirements of Sec. 395.16. The device must be integrally
synchronized with specific operations of the commercial motor vehicle
in which it is installed. The EOBR must record, at minimum, the
information listed in Sec. 395.16(b).
* * * * *
Integrally synchronized refers to an AOBRD or EOBR that receives
and records the engine use status and distance traveled for the purpose
of deriving on-duty driving status from a source or sources internal to
the CMV.
* * * * *
USB (Universal Serial Bus) is a serial bus interface standard for
connecting electronic devices.
UTC (Coordinated Universal Time) is the international civil time
standard, determined by using highly precise atomic clocks. It is the
basis for civil standard time in the United States and its territories.
UTC time refers to time kept on the Greenwich meridian (longitude
zero), which is 5 hours ahead of Eastern Standard Time. UTC times are
expressed in terms of a 24-hour clock. Standard time within any U.S.
time zone is offset from UTC by a given number of hours determined by
the time zone's distance from the Greenwich meridian.
* * * * *
0
19. Amend Sec. 395.8 by revising paragraphs (a)(2) and (e) to read as
follows:
Sec. 395.8 Driver's record of duty status.
(a) * * *
(2) Every driver operating a commercial motor vehicle equipped with
either an automatic on-board recording device meeting the requirements
of Sec. 395.15 or an electronic on-board recorder meeting the
requirements of Sec. 395.16 must record his or her duty status using
the device installed in the vehicle. The requirements of this section
shall not apply, except for paragraphs (e) and (k)(1) and (2) of this
section.
* * * * *
(e) Failure to complete the record of duty activities of either
this section, Sec. 395.15 or Sec. 395.16, failure to preserve a
record of such duty activities, or making false reports in connection
with such duty activities shall make the driver and/or the carrier
liable to prosecution.
* * * * *
0
20. Add Sec. 395.11 to read as follows:
Sec. 395.11 Supporting documents for drivers using EOBRs.
(a) Motor carriers maintaining date, time and location data
produced by a Sec. 395.16-compliant EOBR need only maintain additional
supporting documents (e.g., driver payroll records, fuel receipts) that
provide the ability to verify on-duty not driving activities and off-
duty status according to the requirements of Sec. 395.8(k).
(b) This section does not apply to motor carriers and owner-
operators that have been issued a remedial directive to install, use,
and maintain EOBRs.
0
21. Amend Sec. 395.13 by revising paragraph (b)(2) and by adding
paragraph (b)(4) to read as follows:
Sec. 395.13 Drivers declared out of service.
* * * * *
(b) * * *
(2) Every driver required to maintain a record of duty status under
Sec. 395.8 must have a record of duty status current on the day of
examination and for the prior 7 consecutive days.
* * * * *
(4) No driver shall drive a CMV in violation of Sec. 385.811(d) of
this chapter.
* * * * *
0
22. Amend Sec. 395.15 by adding introductory text to paragraph (a),
and revising paragraph (a)(1) to read as follows:
Sec. 395.15 Automatic on-board recording devices.
(a) Applicability and authority to use. This section applies to
automatic on-board recording devices (AOBRDs) used to record drivers'
hours of service as specified by part 395.
(1) A motor carrier may require a driver to use an AOBRD to record
the driver's hours of service in lieu of complying with the
requirements of Sec. 395.8 of this part. For commercial motor vehicles
manufactured prior to June 4, 2012, manufacturers or motor carriers may
install an electronic device to record hours of service if the device
meets the requirements of either this section or Sec. 395.16.
* * * * *
0
23. Add Sec. 395.16 to read as follows:
[[Page 17246]]
Sec. 395.16 Electronic on-board recording devices.
(a) Applicability and authority to use. This section applies to
electronic on-board recording devices (EOBRs) used to record the
driver's hours of service as specified by part 395. Motor carriers
subject to a remedial directive to install, use and maintain EOBRs,
issued in accordance with 49 CFR part 385, subpart J, must comply with
this section.
(1) A motor carrier may require a driver to use an EOBR to record
the driver's hours of service in lieu of complying with the
requirements of Sec. 395.8 of this part. For commercial motor vehicles
manufactured after June 4, 2012, any electronic device installed in a
CMV by a manufacturer or motor carrier to record hours of service must
meet the requirements of this section.
(2) Every driver required by a motor carrier to use an EOBR shall
use such device to record the driver's hours of service.
(b) Information to be recorded. An EOBR must record the following
information:
(1) Name of driver and any co-driver(s), and corresponding driver
identification information (such as a user ID and password). However,
the name of the driver and any co-driver is not required to be
transmitted as part of the downloaded file during a roadside
inspection.
(2) Duty status.
(3) Date and time.
(4) Location of CMV.
(5) Distance traveled.
(6) Name and USDOT Number of motor carrier.
(7) 24-hour period starting time (e.g., midnight, 9 a.m., noon, 3
p.m.).
(8) The multiday basis (7 or 8 days) used by the motor carrier to
compute cumulative duty hours and driving time.
(9) Hours in each duty status for the 24-hour period, and total
hours.
(10) Truck or tractor and trailer number.
(11) Shipping document number(s), or name of shipper and commodity.
(c) Duty status categories. An EOBR must use the following duty
statuses:
(1) ``Off duty'' or ``OFF''.
(2) ``Sleeper berth'' or ``SB'', to be used only if sleeper berth
is used.
(3) ``Driving'' or ``D''.
(4) ``On-duty not driving'' or ``ON''.
(d) Duty status defaults.
(1) An EOBR must automatically record driving time. If the CMV is
being used as a personal conveyance, the driver must affirmatively
enter an annotation before the CMV begins to move.
(2) When the CMV is stationary for 5 minutes or more, the EOBR must
default to on-duty not driving, and the driver must enter the proper
duty status.
(3) An EOBR must record the results of power-on self-tests and
diagnostic error codes.
(e) Date and time.
(1) The date and time must be recorded on the EOBR output record as
specified under paragraph (i) of this section at each change of duty
status, and at intervals of no greater than 60 minutes when the CMV is
in motion. The date and time must be displayed on the EOBR's visual
output device.
(2) The date and time must be obtained, transmitted, and recorded
in such a way that it cannot be altered by a motor carrier, driver, or
third party.
(3) The driver's duty status record must be prepared, maintained,
and submitted using the time standard in effect at the driver's home
terminal, for a 24-hour period beginning with the time specified by the
motor carrier for that driver's home terminal.
(4) The time must be coordinated to UTC and the absolute deviation
shall not exceed 10 minutes at any time.
(f) Location.
(1) Information used to determine the location of the CMV must be
derived from a source not subject to alteration by the motor carrier or
driver.
(2) The location description for the duty status change, and for
intervening intervals while the CMV is in motion, must be sufficiently
precise to enable Federal, State, and local enforcement personnel to
quickly determine the vehicle's geographic location on a standard map
or road atlas. The term ``sufficiently precise,'' for purposes of this
paragraph means the nearest city, town or village.
(3) When the CMV is in motion, location and time must be recorded
at intervals no greater than 60 minutes. This recorded information must
be capable of being made available in an output file format as
specified in Appendix A to this part, but does not need to be displayed
on the EOBR's visual output device.
(4) For each change of duty status (e.g., the place and time of
reporting for work, starting to drive, on-duty not driving, and where
released from work), the name of the nearest city, town, or village,
with State abbreviation, must be recorded.
(5) The EOBR must record location names using codes derived from
satellite or terrestrial sources, or a combination of these. The
location codes must correspond, at a minimum, to ANSI INCITS 446-2008,
``American National Standard for Information Technology--Identifying
Attributes for Named Physical and Cultural Geographic Features (Except
Roads and Highways) of the United States, Its Territories, Outlying
Areas, and Freely Associated Areas and the Waters of the Same to the
Limit of the Twelve-Mile Statutory Zone (10/28/2008),'' where ``GNIS
Feature Class'' = ``Populated Place'' (incorporated by reference, see
Sec. 395.18). (For further information, see also the Geographic Names
Information System (GNIS) at http://geonames.usgs.gov/domestic/index.html).
(g) Distance traveled.
(1) Distance traveled must use units of miles or kilometers driving
during each on-duty driving period and total for each 24-hour period
for each driver operating the CMV.
(2) If the EOBR records units of distance in kilometers, it must
provide a means to display the equivalent distance in miles.
(3) Distance traveled information obtained from a source internal
to the CMV must be accurate to the distance traveled as measured by the
CMV's odometer.
(h) Review of information by driver.
(1) The EOBR must allow for the driver's review of each day's
record before the driver submits the record to the motor carrier.
(2) The driver must review the information contained in the EOBR
record and affirmatively note the review before submitting the record
to the motor carrier.
(3) The driver may annotate only non-driving-status periods and the
use of a CMV as a personal conveyance as described in paragraph (d)(1)
of this section. The driver must electronically confirm his or her
intention to make any annotations. The annotation must not overwrite
the original record.
(4) If the driver makes a written entry on a hardcopy output of an
EOBR relating to his or her duty status, the entries must be legible
and in the driver's own handwriting.
(i) Information reporting requirements.
(1) An EOBR must make it possible for authorized Federal, State, or
local officials to immediately check the status of a driver's hours of
service.
(2) An EOBR must produce, upon demand, a driver's hours-of-service
record in either electronic or printed form. It must also produce a
digital file in the format described in Appendix A to this part. The
record must show the time and sequence of duty status changes including
the driver's starting time at the beginning of each day. As an
alternative, the EOBR must be able to provide a driver's hours-of-
service
[[Page 17247]]
record as described in paragraph (i)(6) of this section.
(3) This information may be used in conjunction with handwritten or
printed records of duty status for the previous 7 days.
(4) Hours-of-service information must be made accessible to
authorized Federal, State, or local safety assurance officials for
their review without requiring the official to enter in or upon the
CMV. The output record must conform to the file format specified in
Appendix A to this part.
(5) The driver must have in his or her possession records of duty
status for the previous 7 consecutive days available for inspection
while on duty. These records must consist of information stored in and
retrievable from the EOBR, handwritten records, records available from
motor carriers' support systems, other printed records, or any
combination of these. Electronic records must be capable of one-way
transfer through wired and wireless methods to portable computers used
by roadside safety assurance officials and must provide files in the
format specified in Appendix A to this part. Wired communication
information interchange methods must comply with the ``Universal Serial
Bus Specification (Revision 2.0) incorporated by reference, see Sec.
395.18) and additional specifications in Appendix A, paragraph 2.2 to
this part. Wireless communication information interchange methods must
comply with the requirements of the 802.11g-2003 standard as defined in
the 802.11-2007 base standard ``IEEE Standard for Information
Technology--Telecommunications and information exchange between
systems--Local and metropolitan area networks--Specific requirements:
Part 11: Wireless LAN Medium Access Control (MAC) and Physical Layer
(PHY) Specifications'' (IEEE Std. 802.11-2007) (incorporated by
reference, see Sec. 395.18), or CMRS.
(6) Support systems used in conjunction with EOBRs at a driver's
home terminal or the motor carrier's principal place of business must
be capable of providing authorized Federal, State, or local officials
with summaries of an individual driver's hours of service records,
including the information specified in Sec. 395.8(d). The support
systems must also provide information concerning on-board system sensor
failures and identification of amended and edited data. Support systems
must provide a file in the format specified in Appendix A to this part.
The system must also be able to produce a copy of files on portable
storage media (CD-RW, USB 2.0 drive) upon request of authorized safety
assurance officials. The support system may be maintained by a third-
party service provider on behalf of the motor carrier.
(j) Driver identification. For the driver to log into the EOBR, the
EOBR must require the driver to enter information (such as a user ID
and password) that identifies the driver or to provide other
information (such as smart cards, biometrics) that identifies the
driver.
(k) Availability of records of duty status.
(1) An EOBR must be capable of producing duty status records for
the current day and the previous 7 days from either the information
stored in and retrievable from the EOBR or motor carrier support system
records, or any combination of these.
(2) If an EOBR fails, the driver must do the following:
(i) Note the failure of the EOBR and inform the motor carrier
within 2 days.
(ii) Reconstruct the record of duty status for the current day and
the previous 7 days, less any days for which the driver has records.
(iii) Continue to prepare a handwritten record of all subsequent
duty status until the device is again operational.
(iv) A brief (less than 5 minute) loss of connectivity between the
EOBR and a location-tracking system or the motor carriers' support
system is not considered an EOBR failure for the purpose of this
section.
(l) On-board information. Each commercial motor vehicle must have
onboard the commercial motor vehicle an information packet containing
the following items:
(1) An instruction sheet describing how data may be stored and
retrieved from the EOBR.
(2) A supply of blank driver's records of duty status graph-grids
sufficient to record the driver's duty status and other related
information for the duration of the current trip.
(m) Submission of driver's record of duty status.
(1) The driver must submit electronically, to the employing motor
carrier, each record of the driver's duty status.
(2) For motor carriers not subject to the remedies provisions of
part 385 subpart J of this chapter, each record must be submitted
within 13 days of its completion.
(3) For motor carriers subject to the remedies provisions of part
385 subpart J of this chapter, each record must be submitted within 3
days of its completion.
(4) The driver must review and verify that all entries are accurate
prior to submission to the employing motor carrier.
(5) The submission of the record of duty status certifies that all
entries made by the driver are true and correct.
(n) EOBR display requirements. An EOBR must have the capability of
displaying all of the following information:
(1) The driver's name and EOBR login ID number on all EOBR records
associated with that driver, including records in which the driver
serves as a co-driver.
(2) The driver's total hours of driving during each driving period
and the current duty day.
(3) The total hours on duty for the current duty day.
(4) Total miles or kilometers of driving during each driving period
and the current duty day.
(5) Total hours on duty and driving time for the prior 7-
consecutive-day period, including the current duty day.
(6) Total hours on duty and driving time for the prior 8-
consecutive-day period, including the current duty day.
(7) The sequence of duty status for each day, and the time of day
and location for each change of duty status, for each driver using the
device.
(8) EOBR serial number or other identification, and identification
number(s) of vehicle(s) operated that day.
(9) Remarks, including fueling, waypoints, loading and unloading
times, unusual situations, or violations.
(10) Driver's override of an automated duty status change to
driving if using the vehicle for personal conveyance or for yard
movement.
(11) The EOBR may record other data as the motor carrier deems
appropriate, including the date and time of crossing a State line for
purposes of fuel-tax reporting.
(o) Performance of recorders. A motor carrier that uses an EOBR for
recording a driver's records of duty status instead of the handwritten
record must ensure the EOBR meets the following requirements:
(1) The EOBR must permit the driver to enter information into the
EOBR only when the commercial motor vehicle is at rest.
(2) The EOBR and associated support systems must not permit
alteration or erasure of the original information collected concerning
the driver's hours of service, or alteration of the source data streams
used to provide that information.
(3) The EOBR must be able to perform a power-on self-test, as well
as a self-test at any point upon request of an authorized safety
assurance official. The
[[Page 17248]]
EOBR must provide an audible and visible signal as to its functional
status. It must record the outcome of the self-test and its functional
status as a diagnostic event record in conformance with Appendix A to
this part.
(4) The EOBR must provide an audible and visible signal to the
driver at least 30 minutes in advance of reaching the driving time
limit and the on-duty limit for the 24-hour period.
(5) The EOBR must be able to track total weekly on-duty and driving
hours over a 7- or 8-day consecutive period. The EOBR must be able to
warn a driver at least 30 minutes in advance of reaching the weekly
duty-/driving-hour limitation.
(6) The EOBR must warn the driver via an audible and visible signal
that the device has ceased to function. ``Ceasing to function'' for the
purpose of this paragraph does not include brief losses of
communications signals during such time as, but not limited to, when
the vehicle is traveling through a tunnel.
(7) The EOBR must record a code corresponding to the reason it has
ceased to function and the date and time of that event.
(8) The audible signal must be capable of being heard and discerned
by the driver when seated in the normal driving position, whether the
CMV is in motion or parked with the engine operating. The visual signal
must be visible to the driver when the driver is seated in the normal
driving position.
(9) The EOBR must be capable of recording separately each driver's
duty status when there is a multiple-driver operation.
(10) The EOBR device/system must identify sensor failures and
edited and annotated data when downloaded or reproduced in printed
form.
(11) The EOBR device/system must identify annotations made to all
records, the date and time the annotations were made, and the identity
of the person making them.
(12) If a driver or any other person annotates a record in an EOBR
or an EOBR support system, the annotation must not overwrite the
original contents of the record.
(p) Motor Carrier Requirements.
(1) The motor carrier must not alter or erase, or permit or require
alteration or erasure of, the original information collected concerning
the driver's hours of service, the source data streams used to provide
that information, or information contained in its EOBR support systems
that use the original information and source data streams.
(2) The motor carrier must ensure the EOBR is calibrated,
maintained, and recalibrated in accordance with the manufacturer's
specifications; the motor carrier must retain records of these
activities.
(3) The motor carrier's drivers and other personnel reviewing and
using EOBRs and the information derived from them must be adequately
trained regarding the proper operation of the device.
(4) The motor carrier must maintain a second copy (back-up copy) of
the electronic hours-of-service files, by month, on a physical device
different from that on which the original data are stored.
(5) The motor carrier must review the EOBR records of its drivers
for compliance with part 395.
(6) If the motor carrier receives or discovers information
concerning the failure of an EOBR, the carrier must document the
failure in the hours-of-service record for that driver.
(q) Manufacturer's self-certification.
(1) The EOBR and EOBR support systems must be certified by the
manufacturer as evidence that they have been sufficiently tested to
meet the requirements of Sec. 395.16 and Appendix A to this part under
the conditions in which they would be used.
(2) The exterior faceplate of the EOBR must be marked by the
manufacturer with the text ``USDOT-EOBR'' as evidence that the device
has been tested and certified as meeting the performance requirements
of Sec. 395.16 and Appendix A to this part.
0
24. Add Sec. 395.18 to read as follows:
Sec. 395.18 Matter incorporated by reference.
(a) Incorporation by reference. Certain materials are incorporated
by reference in part 395, with the approval of the Director of the
Federal Register under 5 U.S.C. 552(a), and 1 CFR part 51. For
materials subject to change, only the specific version approved by the
Director of the Office of the Federal Register and specified in the
regulation is incorporated. To enforce any edition other than that
specified in this section, the Federal Motor Carrier Safety
Administration must publish notice of change in the Federal Register
and the material must be available to the public. All of the approved
material is available for inspection at the National Archives and
Records Administration (NARA). For information on the availability of
this material at NARA, call 202-741-6030 or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html. Also, it is
available for inspection at the Federal Motor Carrier Safety
Administration, Office of Bus and Truck Standards and Operations (MC-
PS), 1200 New Jersey Ave., SE., Washington, DC 20590-00001, (202) 366-
4325, and is available from the sources listed in paragraphs (b) and
(c) of this section.
(b) Institute of Electrical and Electronic Engineers (IEEE). 3 Park
Avenue, New York, New York 10016-5997. Web page is http://www.ieee.org/web/publications/home; telephone is (800) 678-4333.
(1) ``IEEE Standard for Information Technology--Telecommunications
and information exchange between systems--Local and metropolitan area
networks--Specific requirements: Part 11: Wireless LAN Medium Access
Control (MAC) and Physical Layer (PHY) Specifications,'' IEEE Computer
Society, Sponsored by the LAN/MAN Standards Committee: June 12, 2007
(IEEE Std. 802.11-2007). Incorporation by reference approved for Sec.
395.16(i); and Appendix A to part 395, paragraph 2.3.
(2) [Reserved]
(c) Universal Serial Bus Implementers Forum (USBIF). 3855 SW. 153rd
Drive, Beaverton, Oregon 97006. Web page is http://www.usb.org;
telephone is (503) 619-0426.
(1) ``Universal Serial Bus Specification,'' Compaq, Hewlett-
Packard, Intel, Lucent, Microsoft, NEC, Philips; April 27, 2000
(Revision 2.0). Incorporation by reference approved for Sec. 395.16(i)
and Appendix A to part 395, paragraph 2.2.
(2) [Reserved]
(d) American National Standards Institute (ANSI). 11 West 42nd
Street, New York, New York 10036. Web page is http://webstore.ansi.org;
telephone is (212) 642-4900.
(1) ``ANSI INCITS 446-2008, American National Standard for
Information Technology--Identifying Attributes for Named Physical and
Cultural Geographic Features (Except Roads and Highways) of the United
States, Its Territories, Outlying Areas, and Freely Associated Areas
and the Waters of the Same to the Limit of the Twelve-Mile Statutory
Zone (10/28/2008),'' (ANSI INCITS 446-2008). Incorporation by reference
approved for Sec. 395.16(f); Appendix A to part 395, paragraph 1.3,
Table 2; and Appendix A to part 395, paragraph 3.1.1.3. (For further
information, see also the Geographic Names Information System (GNIS) at
http://geonames.usgs.gov/domestic/index.html.
(2) [Reserved]
0
25. Add Appendix A to 49 CFR part 395 to read as follows:
[[Page 17249]]
Appendix A to Part 395--Electronic On-Board Recorder Performance
Specifications
1. Data Elements Dictionary for Electronic On-Board Recorders
(EOBRs)
1.1 To facilitate the electronic transfer of records to roadside
inspection personnel and compliance review personnel, and provide
the ability of various third-party and proprietary EOBR devices to
be interoperable, a consistent electronic file format and record
layout for the electronic RODS data to be recorded are necessary.
This EOBR data elements dictionary provides a standardized and
consistent format for EOBR output data.
EOBR Data File Format
1.2 Regardless of the particular electronic file type (such as
ASCII or XML) ultimately used for recording the electronic RODS
produced by an EOBR, RODS data must be recorded according to a
``flat file'' database model format. A flat file is a simple
database in which all information is stored in a plain text format
with one database ``record'' per line. Each of these data records is
divided into ``fields'' using delimiters (as in a comma-separate-
values data file) or based on fixed column positions. Table 1 below
presents the general concept of a flat data file consisting of data
``fields'' (columns) and data ``records'' (rows).
[GRAPHIC] [TIFF OMITTED] TR05AP10.000
1.3 The data elements dictionary describes the data fields
component of the above framework. Individual data records must be
generated and recorded whenever there is a change in driver duty
status, an EOBR diagnostic event (such as power-on/off, self test,
etc.), or when one or more data fields of an existing data record
are later amended. In the last case, the corrected record must be
recorded and noted as ``current'' in the ``Event Status Code'' data
field, with the original record maintained in its unedited form and
noted as ``historical'' in the ``Event Status Code'' data field. The
EOBR Data Elements Dictionary is described in Table 2. The event
codes are listed in Table 3.
Table 2--EOBR Data Elements Dictionary
----------------------------------------------------------------------------------------------------------------
Data element Valid values and
Data element definition Type Length notes
----------------------------------------------------------------------------------------------------------------
Driver Identification Data
----------------------------------------------------------------------------------------------------------------
Driver First Name................. First name of the A................. 35 See Note 1.
driver.
Driver Last Name.................. Last name, family A................. 35 See Note 1.
name, or surname of
the driver.
Driver PIN/ID..................... Numeric A................. 40 .....................
identification
number assigned to a
driver by the motor
carrier.
----------------------------------------------------------------------------------------------------------------
Vehicle Identification Data
----------------------------------------------------------------------------------------------------------------
Tractor Number.................... Motor carrier A................. 10 .....................
assigned
identification
number for tractor
unit.
Trailer Number.................... Motor carrier A................. 10 .....................
assigned
identification
number for trailer.
Tractor VIN Number................ Unique vehicle ID A................. 17 .....................
number assigned by
manufacturer
according to US DOT
regulations.
----------------------------------------------------------------------------------------------------------------
Co-Driver Data
----------------------------------------------------------------------------------------------------------------
Co-Driver First Name.............. First name of the co- A................. 35 See Note 1.
driver.
Co-Driver Last Name............... Last name, family A................. 35 See Note 1.
name or surname of
the co-driver.
Co-Driver ID...................... Numeric A................. 40 .....................
identification
number assigned to a
driver by the motor
carrier.
----------------------------------------------------------------------------------------------------------------
Company Identification Data
----------------------------------------------------------------------------------------------------------------
Carrier USDOT Number.............. USDOT Number of the N................. 8 .....................
motor carrier
assigned by FMCSA.
[[Page 17250]]
Carrier Name...................... Name or trade name of A................. 120 .....................
the motor carrier
company appearing on
the Form MCS-150.
----------------------------------------------------------------------------------------------------------------
Shipment Data
----------------------------------------------------------------------------------------------------------------
Shipping Document Number.......... Shipping document A................. 40 .....................
number.
----------------------------------------------------------------------------------------------------------------
Event Data
----------------------------------------------------------------------------------------------------------------
Event Sequence ID................. A serial identifier N................. 4 0001 through 9999.
for an event that is
unique to a
particular vehicle
and a particular day.
Event Status Code................. Character codes for A................. 3 OFF = Off Duty
the four driver duty SB = Sleeper Berth
status change D = On Duty Driving
events, State border ON = On Duty Not
crossing event, and Driving
diagnostic events. DG = Diagnostic.
Event Date........................ The date when an N (Date).......... 8 UTC (universal time)
event occurred. recommended. Format:
YYYYMMDD.
Event Time........................ The time when an N (Time).......... 6 UTC (universal time)
event occurred. recommended. Format:
HHMMSS (hours,
minutes, seconds).
Event Latitude.................... Latitude of a N................. 2,6 Decimal format:
location where an XX.XXXXXX.
event occurred.
Event Longitude................... Longitude of a N................. 3,6 Decimal format:
location where an XXX.XXXXXX.
event occurred.
Place Name........................ The location codes N................. 5 Unique within a FIPS
must correspond, at state code. Lookup
a minimum, to ANSI list derived from
INCITS 446-2008, GNIS.
``American National
Standard for
Information
Technology--Identify
ing Attributes for
Named Physical and
Cultural Geographic
Features (Except
Roads and Highways)
of the United
States, Its
Territories,
Outlying Areas, and
Freely Associated
Areas and the Waters
of the Same to the
Limit of the Twelve-
Mile Statutory Zone
(10/28/2008),''
where ``GNIS Feature
Class'' =
``Populated Place''
(incorporated by
reference, see Sec.
395.18). (For
further information,
see also the
Geographic Names
Information System
(GNIS) at http://geonames.usgs.gov/domestic/index.html.
Place Distance Miles.............. Distance in miles to N................. 4 .....................
nearest populated
place from the
location where an
event occurred.
Total Vehicle Miles............... Total vehicle miles N................. 7 With total vehicle
(as noted on vehicle mileage recorded at
odometer or as the time of each
measured by any event, vehicle miles
other compliant traveled while
means such as driving, etc., can
vehicle location be computed.
system, etc.).
Event Update Status Code.......... A status of an event, A................. 1 C = Current, H =
either Current (the Historical.
most up-to-date
update or edit) or
Historical (the
original record if
the record has
subsequently been
updated or edited).
Diagnostic Event Code............. For diagnostic events A................. 2 (See Table 3).
(events where the
``Event Status
Code'' is noted as
``DG''), records the
type of diagnostic
performed (e.g.,
power-on, self test,
power-off, etc.).
Event Error Code.................. Error code associated A................. 2 (See Table 3).
with an event.
Event Update Date................. The date when an N (Date).......... 8 UTC (universal time)
event record was recommended. Format:
last updated or YYYYMMDD.
edited.
Event Update Time................. Then time when an N (Time).......... 6 UTC (universal time)
event record was recommended. Format:
last updated or HHMMSS (hours,
edited. minutes, seconds).
Event Update Person ID............ An identifier of the A................. 40 .....................
person who last
updated or edited a
record.
Event Update Text................. A textual note A................. 60 Brief narrative
related to the most regarding reason for
recent record update record update or
or edit. edit.
----------------------------------------------------------------------------------------------------------------
Note 1: This element must not be included in the records
downloaded from an EOBR or support system at roadside.
[[Page 17251]]
Table 3--EOBR Diagnostic Event Codes
----------------------------------------------------------------------------------------------------------------
Code class Code Brief description Full description
----------------------------------------------------------------------------------------------------------------
General System Diagnostic......... PWR--ON................... Power on............. EOBR initial power-on.
General System Diagnostic......... PWROFF.................... Power off............ EOBR power-off.
General System Diagnostic......... TESTOK.................... test okay............ EOBR self test
successful.
General System Diagnostic......... SERVIC.................... Service.............. EOBR Malfunction (return
unit to factory for
servicing).
General System Diagnostic......... MEMERR.................... memory error......... System memory error.
General System Diagnostic......... LOWVLT.................... Low voltage.......... Low system supply
voltage.
General System Diagnostic......... BATLOW.................... battery low.......... Internal system battery
backup low.
General System Diagnostic......... CLKERR.................... clock error.......... EOBR system clock error
(clock not set or
defective).
General System Diagnostic......... BYPASS.................... Bypass............... EOBR system bypassed
(RODS data not
collected).
Data Storage Diagnostic........... INTFUL.................... internal memory full. Internal storage memory
full (requires download
or transfer to external
storage).
Data Storage Diagnostic........... DATACC.................... Data accepted........ System accepted driver
data entry.
Data Storage Diagnostic........... EXTFUL.................... external memory full. External memory full
(smartcard or other
external data storage
device full).
Data Storage Diagnostic........... EXTERR.................... external data access Access external storage
error. device failed.
Data Storage Diagnostic........... DLOADY.................... download yes......... EOBR data download
successful.
Data Storage Diagnostic........... DLOADN.................... download no.......... Data download rejected
(unauthorized request/
wrong Password).
Driver Identification Issue....... NODRID.................... no driver ID......... No driver information in
system and vehicle is in
motion.
Driver Identification Issue....... PINERR.................... PIN error............ Driver PIN/identification
number invalid.
Driver Identification Issue....... DRIDRD.................... Driver ID read....... Driver information
successfully read from
external storage device
(transferred to EOBR).
Peripheral Device Issue........... DPYERR.................... display error........ EOBR display malfunction.
Peripheral Device Issue........... KEYERR.................... keyboard error....... EOBR keyboard/input
device malfunction.
External Sensor Issue............. NOLTLN.................... no latitude longitude No latitude and longitude
from positioning sensor.
External Sensor Issue............. NOTSYC.................... no time Unable to synchronize
synchronization. with external time
reference input.
External Sensor Issue............. COMERR.................... communications error. Unable to communicate
with external data link
(to home office or
wireless service
provider).
External Sensor Issue............. NO--ECM................... no ECM data.......... No sensory information
received from vehicle's
Engine Control Module
(ECM).
External Sensor Issue............. ECM--ID................... ECM ID number ECM identification/serial
mismatch. number mismatch (with
preprogrammed
information).
----------------------------------------------------------------------------------------------------------------
2. Communications Standards for the Transmittal of Data Files From
Electronic On-Board Recorders (EOBRs)
2.1 EOBRs must produce and store RODS in accordance with the
file format specified in this Appendix and must be capable of a one-
way transfer of these records through wired and wireless methods to
authorized safety officials upon request.
2.2 Wired. EOBRs must be capable of transferring RODS using the
``Universal Serial Bus Specification (Revision 2.0) (incorporated by
reference, see Sec. 395.18). Each EOBR device must implement a
single USB compliant interface featuring a Type B connector. The USB
interface must implement the Mass Storage class (08h) for driverless
operation.
2.3 Wireless. EOBRs must be capable of transferring RODS using
one of the following wireless standards:
2.3.1 802.11g-2003 standard as defined in the 802.11-2007 base
standard for wireless communication ``IEEE Standard for Information
Technology--Telecommunications and information exchange between
systems--Local and metropolitan area networks--Specific
requirements: Part 11: Wireless LAN Medium Access Control (MAC) and
Physical Layer (PHY) Specifications'' (IEEE Std. 802.11-2007)
(incorporated by reference, see Sec. 395.18).
2.3.2 Commercial Mobile Radio Services (e.g., cellular).
3. Certification of EOBRs To Assess Conformity With FMCSA Standards
3.1 The following outcome-based performance requirements must be
included in the self-certification testing conducted by EOBR
manufacturers:
3.1.1 Location
3.1.1.1 The location description for the duty status change must
be sufficiently precise to enable enforcement personnel to quickly
determine the vehicle's geographic location at each change of duty
status on a standard map or road atlas.
3.1.1.2 When the CMV is in motion, location and time must be
recorded at intervals of no greater than 60 minutes. This recorded
information must be available for an audit of EOBR data, but is not
required to be displayed on the EOBR's visual output device.
3.1.1.3 Location codes derived from satellite or terrestrial
sources, or a combination thereof must be used. The location codes
must correspond, at minimum, to the GNIS maintained by the United
States Geological Survey.
3.1.2 Distance traveled
3.1.2.1 Distance traveled may use units of miles or kilometers
driving during each on-duty driving period and total for each 24-
hour period for each driver operating the CMV.
3.1.2.2 If the EOBR records units of distance in kilometers, it
must provide a means to display the equivalent distance in English
units.
3.1.2.3 If the EOBR obtains distance-traveled information from a
source internal to the CMV, the information must be accurate to the
CMV's odometer.
3.1.3 Date and time
3.1.3.1 The date and time must be reported on the EOBR output
record and display for each change of duty status and at such
additional entries as specified under ``Location.''
3.1.3.2 The date and time must be obtained, transmitted, and
recorded in such a way that it cannot be altered by a motor carrier
or driver.
[[Page 17252]]
3.1.3.3 The time must be coordinated to the Universal Time Clock
(UTC) and must not drift more than 60 seconds per month.
3.1.4 File format and communication protocols: The EOBR must
produce and transfer a RODS file in the format and communication
methods specified in sections 1.0 and 2.0 of this Appendix.
3.1.5 Environment
3.1.5.1 Temperature--The EOBR must be able to operate in
temperatures ranging from -40 degrees C to 85 degrees C.
3.1.5.2 Vibration and shock--The EOBR must meet industry
standards for vibration stability and for preventing electrical
shocks to device operators.
3.2 The EOBR and EOBR support systems must be certified by the
manufacturer as evidence that their design has been sufficiently
tested to meet the requirements of Sec. 395.16 under the conditions
in which they would be used.
3.3 The exterior faceplate of EOBRs must be marked by the
manufacturer with the text `USDOT-EOBR' as evidence that the device
has been tested and certified as meeting the performance
requirements of Sec. 395.16.
PART 396--INSPECTION, REPAIR AND MAINTENANCE
0
26. The authority citation for part 396 continues to read as follows:
Authority: 49 U.S.C. 31133, 31136, and 31502; and 49 CFR 1.73.
0
27. Amend Sec. 396.9 by revising the section heading, the heading of
paragraph (c), and paragraph (c)(1) to read as follows:
Sec. 396.9 Inspection of motor vehicles in operation.
* * * * *
(c) Motor vehicles declared ``out of service.'' (1) Authorized
personnel shall declare and mark ``out of service'' any motor vehicle
which by reason of its mechanical condition or loading would likely
cause an accident or a breakdown. Authorized personnel may declare and
mark ``out of service'' any motor vehicle not in compliance with Sec.
385.811(d). An ``Out of Service Vehicle'' sticker shall be used to mark
vehicles ``out of service.''
* * * * *
Issued on: March 19, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-6747 Filed 4-2-10; 8:45 am]
BILLING CODE 4910-EX-P