[Federal Register Volume 69, Number 169 (Wednesday, September 1, 2004)]
[Proposed Rules]
[Pages 53386-53397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19907]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[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: Advance notice of proposed rulemaking; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
requests comments on potential amendments to its regulations concerning 
the use of on-board recording devices to document compliance with the 
Federal hours-of-service rules. Because our current regulations do not 
reflect the considerable advances in the technology used in current-
generation recording devices (also known as electronic on-board 
recorders, or EOBRs), we seek information concerning issues that should 
be considered in the development of improved performance specifications 
for these recording devices. Our purpose is to ensure that any future 
requirements would be appropriate as well as reflect state-of-the-art 
communication and information management technologies.

DATES: Comments must be received on or before November 30, 2004.

ADDRESSES: You may submit comments, identified by DOT DMS Docket Number 
FMCSA-2004-17286, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Agency Web Site: http://dms.dot.gov. Follow the 
instructions for submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this notice. All comments received will be posted 
without change to http://dms.dot.gov, including any personal 
information provided. Please see the Privacy Act heading for further 
information.
    Docket: For access to the docket to read background documents 
including those referenced in this document, or to read comments 
received, go to http://dms.dot.gov and/or Room PL-401 on the Plaza 
level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, or other 
entity). You may review DOT's complete Privacy Act Statement in the 
Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also 
available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Office of Bus 
and Truck Standards and Operations, (202) 366-4009, Federal Motor 
Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 
20590-0001. Office hours are 7:45 a.m. to 4:15 p.m., e.s.t., Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Legal Basis for the Rulemaking

    The Motor Carrier Act of 1935 provides that ``[t]he 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'' (49 
U.S.C. 31502(b)).
    This advance notice of proposed rulemaking (ANPRM) deals with 
``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. FMCSA has allowed the use of automatic 
on-board recording devices to track drivers' hours of service since 
1988 (49 CFR 395.15). The recorders authorized by Sec.  395.15 are 
mostly mechanical in design. Rapid developments in electronic 
technology have made them increasingly obsolete. This ANPRM therefore 
addresses the possibility of allowing motor carriers to use modern 
EOBRs to document drivers' compliance with the hours-of-service 
requirements. In order to meet the requirements of the 1935 Act, EOBRs 
must reliably and accurately perform the functions for which they are 
designed. The ANPRM seeks information on a wide variety of questions 
related to that issue.
    The Motor Carrier Safety Act of 1984 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)).
    This ANPRM is concerned primarily with section 31136(a)(2) and (3). 
The hours-of-service regulations are

[[Page 53387]]

designed to ensure that driving time--one of the principal 
``responsibilities imposed on the operators of commercial motor 
vehicles''--does ``not impair their ability to operate the vehicles 
safely.'' EOBRs that are properly designed, maintained, and used would 
enable motor carriers to track their drivers' on-duty and driving hours 
very accurately, thus permitting them to better prevent regulatory 
violations or excessive driver fatigue, but also allowing them to 
schedule vehicle and driver operations more efficiently. Driver 
compliance with the hours-of-service rules would help to ensure that 
``the physical condition of [commercial motor vehicle drivers] is 
adequate to enable them to operate the vehicles safely.'' In short, 
FMCSA is attempting to evaluate the suitability of EOBRs to demonstrate 
compliance with and enforcement of the hours-of-service regulations, 
which in turn have major implications for the welfare of drivers and 
the safe operation of commercial motor vehicles (CMVs).
    In addition, Sec. 408 of the ICC Termination Act of 1995 (Public 
Law 104-88, 109 Stat. 803, at 958) required the agency to issue an 
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 
ANPRM was published on November 5, 1996 (61 FR 57252), the NPRM on May 
2, 2000 (65 FR 25540), and the final rule on April 28, 2003 (68 FR 
22456). FMCSA decided not to adopt EOBR regulations in 2003 but noted 
that it planned ``to continue research on EOBRs and other technologies, 
seeking to stimulate innovation in this promising area'' (68 FR 22488).
    On July 16, 2004, the United States Court of Appeals for the 
District of Columbia Circuit vacated the 2003 final rule (Public 
Citizen et al. v. FMCSA, No. 03-1165) for reasons unrelated to EOBRs. 
In dicta, however, the court said that Sec. 408 of the ICC Termination 
Act ``required the agency, at a minimum, to collect and analyze data on 
the costs and benefits of requiring EOBRs'' [slip opinion, at 19]. This 
ANPRM, which has been under development for some time, is an effort to 
do just that.

Background

    Ensuring safe driving of commercial motor vehicles is at the heart 
of the Federal hours-of-service regulations (49 CFR Part 395). The 
hours-of-service regulations apply to drivers of commercial motor 
vehicles, as defined in 49 CFR 390.5. One of the most important goals 
of the rules is to ensure that commercial vehicle operators do not 
drive for long periods without opportunities to obtain restorative 
sleep. Adequate sleep is an important contributor to human health. From 
the standpoint of highway safety, adequate sleep is necessary to ensure 
that a person is alert behind the wheel and able to respond 
appropriately to changes in the driving environment. Therefore, the 
hours-of-service rules prohibit CMV drivers from driving or being 
directed to drive more than a specified amount of time between 
mandatory off-duty periods.
    The regulations also prohibit driving after a specific amount of 
cumulative on-duty time on both a daily and multiday basis. On-duty 
time is time spent driving and performing other duties at a motor 
carrier's direction. Under Sec.  395.8, all motor carriers and drivers 
must keep records to track on-duty and off-duty time. FMCSA uses these 
records to carry out safety oversight activities, as do State agencies 
enforcing compatible State laws and regulations. Under an exception at 
Sec.  395.1(e), a motor carrier whose drivers operate within a 100 air-
mile radius of the normal work-reporting location may use ``time 
records,'' or time cards, to satisfy the hours-of-service recordkeeping 
requirement.
    The methods of recording and documenting hours of service have been 
modified several times over the years. The Interstate Commerce 
Commission (ICC) first established a requirement for a ``Driver's Daily 
Log'' in 1940. In 1952, the ICC revised the format in Ex Parte No. MC-
40, which reduced the number of drivers' duty status categories from 15 
to 4 (17 FR 4422 at 4488, May 15, 1952). This latter revision added the 
familiar graph-grid recording format to the driver's log. In 1982, the 
document's name changed to ``Driver's Record of Duty Status (RODS)'' 
and additional minor changes were made (47 FR 53389, Nov. 26, 1982). 
Other additional minor revisions were made in subsequent years.

Current Regulations and Guidance on Automatic On-Board Recording 
Devices

    Motor carriers began to look to automated methods of recording 
drivers' duty status records in the mid-1980s as a way to save drivers 
time and improve the efficiency of their compliance-assurance 
procedures. In April 1985 (50 FR 15269, Apr. 17, 1985), the Federal 
Highway Administration (FHWA), the predecessor agency to FMCSA within 
the U.S. Department of Transportation (DOT),\1\ granted a waiver to 
Frito-Lay, Inc. to allow it to use on-board computers in lieu of 
requiring drivers to complete handwritten RODS. Nine other motor 
carriers were subsequently granted waivers.
---------------------------------------------------------------------------

    \1\ 1On December 9, 1999, the President signed the Motor Carrier 
Safety Improvement Act of 1999 (MCSIA) (Public Law 106-159, 113 
Stat. 1748). The statute established the Federal Motor Carrier 
Safety Administration within DOT. On January 4, 2000, the Secretary 
redelegated to FMCSA the motor carrier and driver authority 
previously delegated to FHWA (65 FR 220).
---------------------------------------------------------------------------

    In 1986, the Insurance Institute for Highway Safety (IIHS) 
petitioned FHWA to require the installation and use of automatic on-
board recordkeeping systems. The petition was denied, and IIHS 
petitioned for reconsideration in February 1987.
    In July 1987 (52 FR 26289, Jul. 13, 1987), FHWA published an 
advance notice of proposed rulemaking concerning on-board recording 
devices. FHWA followed with a notice of proposed rulemaking in March 
1988 (53 FR 8228, Mar. 14, 1988) and a final rule in September of the 
same year (53 FR 38666, Sep. 30, 1988). The rule revised part 395 of 
the Federal Motor Carrier Safety Regulations by allowing motor carriers 
the flexibility to equip CMVs with an automatic on-board recording 
device (AOBRD) in lieu of requiring drivers to complete handwritten 
RODS. The term automatic on-board recording device was defined under 
Sec.  395.2 as:

    * * * an electric, electronic, electromechanical, or mechanical 
device capable of recording driver's [sic] duty status information 
accurately and automatically as required by Sec.  395.15. The device 
must be integrally synchronized with specific operations of the 
commercial motor vehicle in which it is installed. At a minimum, the 
device must record engine use, road speed, miles driven, the date, 
and time of day.

    The regulations at 49 CFR 395.15 cover a motor carrier's authority 
to require use of the devices; information requirements; the duty 
status and additional information that must be recorded; and the manner 
of recording change of duty status location. Entries must be made only 
by the driver. Drivers are required to note any failures in the 
performance of the device and to reconstruct records of their duty on 
blank RODS forms. For the benefit of both drivers and safety officials, 
especially law enforcement officers, an instruction sheet describing 
the operation of the automatic on-board recording device must be 
present in the vehicle.
    Requirements for submission to the motor carrier of the RODS 
generated by automatic on-board recording devices are similar to those 
for handwritten RODS, except that the driver is not required to sign 
the record. Submission

[[Page 53388]]

of the record(s) constitutes certification that all entries made are 
true and correct.
    Performance requirements for AOBRDs (at 49 CFR 395.15(i)) are 
straightforward. The manufacturer must certify that the design of the 
device ``has been sufficiently tested to meet the requirements of this 
section and under the conditions it will be used.'' Sec.  395.15(i)(1) 
The design must permit duty status to be updated only when the vehicle 
is at rest, unless the driver is registering the crossing of a State 
boundary. The AOBRD and support systems must be tamperproof ``to the 
maximum extent practicable.'' The AOBRD must provide a visual and/or 
audible warning to the driver if it ceases to function, and any sensor 
failures and edited data must be identified in the RODS printed from 
the device.
    Finally, the AOBRD must be maintained and recalibrated according to 
the manufacturer's specifications; drivers must be adequately trained 
in the proper operation of the device; and the motor carrier must 
maintain a second (backup) copy of electronic hours-of-service files in 
a separate location.
    In part because on-board recorder technology was so new and such a 
significant departure from paper RODS when the final rule was developed 
16 years ago, the rule included at Sec.  395.15(j) a provision to 
rescind a motor carrier's authority to use an AOBRD. Under this 
provision, the agency may order any motor carrier or driver to revert 
to using paper hours-of-service records if it determines that the 
carrier poses certain safety management control issues.
    Although the 1988 final rule addressed the possibility that some 
tachographs \2\ could conceivably comply with the provisions of Sec.  
395.15 (53 FR 38666, at 38669, ``This new definition is sufficiently 
broad to include computers and tachographs.''), FHWA subsequently 
determined that conventional mechanical tachographs do not comply with 
these requirements. The agency explained its decision in a letter of 
September 23, 1991, to Abbott Tachograph. A copy of this letter is in 
the docket, along with copies of all reports, memoranda of 
understanding, and letters referenced in this document.
---------------------------------------------------------------------------

    \2\ The Dictionary of Mechanical Engineering defines a 
tachograph as an ``electronic device that records vehicle usage 
relative to time.'' (Naylor, G.H. F., Dictionary of Mechanical 
Engineering, 4th edition. Society of Automotive Engineers, Inc., 
Warrendale, Pennsylvania)
---------------------------------------------------------------------------

    At the time Sec.  395.15 was issued, the technology to allow on-
board recorders to communicate data wirelessly between the CMV and the 
motor carrier's base of operations did not exist on a widespread 
commercial basis. Thanks to emerging technologies used in these 
devices, the narrowly crafted on-board recorder regulation now needs to 
be revised. Various communications technologies, many of which include 
vehicle tracking using global positioning system (GPS)-based 
technologies, allow real-time transmission of a vehicle's location and 
other operational information. We call these current-generation 
recording EOBRs. By taking advantage of these technologies, a motor 
carrier can improve not only its scheduling of vehicles and drivers but 
also its asset management and customer service. In fact, some system 
providers offer applications for real-time hours-of-service monitoring 
that build upon the time- and location-tracking functions included in 
the providers' hardware and software products.
    To bridge the gap between the current regulations and state-of-the-
art technology, FMCSA has relied upon interpretations, regulatory 
guidance, pilot demonstration programs, and, most recently, exemptions 
concerning the use of on-board recorders.

Interpretations and Regulatory Guidance

    A comprehensive update of regulatory guidance published on April 4, 
1997 (65 FR 16369, at 16426) included two interpretations concerning 
AOBRDs. The first clarified that backup electronic records are not 
required if a paper record of duty status document is printed. The 
second underscored the prohibition against a driver's using an AOBRD to 
amend his or her duty status during a trip.
    We recently added an interpretation concerning the use of 
algorithms in AOBRDs to identify the location of a change of duty 
status relative to the nearest city, town, or village. Added to the 
Motor Carrier Regulatory Guidance and Interpretation System (MCREGIS) 
in March 2003, this interpretation specifies that algorithms must be 
sufficiently accurate to ensure, through the on-board recorder's 
integral connection to the vehicle's systems, correlation between the 
driving time and distance traveled. Also, the location description for 
the duty status change must be sufficiently precise to enable 
enforcement personnel to quickly determine the CMV's geographic 
location on a standard map or road atlas. This regulatory 
interpretation is available on FMCSA's Web site at http://www.fmcsa.dot.gov/rulesregs/fmcsr/fmcsrguide.htm.

GPS Technologies: Notice of Interpretation and Request for 
Participation

    On April 6, 1998, FHWA published a notice of interpretation on GPS 
technology (63 FR 16697). The notice also announced a voluntary program 
whereby motor carriers using GPS and related safety management computer 
systems could enter into an agreement with the agency to use the 
systems in lieu of handwritten RODS or a conventional AOBRD. This 
program was offered as a pilot demonstration project consistent with 
the President's initiatives on reinventing government and regulatory 
reform. The project's intent was to demonstrate whether use of this 
technology by the motor carrier industry could improve compliance with 
the hours-of-service requirements while increasing operational 
efficiency and reducing paperwork burden. In June 1998, Werner 
Enterprises, Inc. (Werner) entered into a Memorandum of Understanding 
(MOU) with the agency to test the use of its system under such a pilot 
project.
    At the time we entered into the MOU with Werner, certain features 
of GPS technology, wireless communications, and related computer 
systems were not readily adaptable to the provisions of Sec.  395.15. 
However, the GPS-based systems that Werner proposed to pilot had other 
capabilities that would satisfy or go beyond these requirements. Table 
1 of the notice of interpretation (63 FR 16697, at 16698, Apr. 6, 1998) 
describes these capabilities in relation to specific provisions of 
Sec.  395.15. One notable difference was that, rather than being 
integrally linked to the vehicle to record driving time, the GPS system 
software employed algorithms that set on-duty and off-duty times using 
preprogrammed assumptions.
    In a 1999 letter to FHWA, a safety advocacy organization stated 
that, based on information received from drivers, Werner's system did 
not appear to provide an accurate accounting of drivers' duty status 
under certain conditions, such as prolonged low speeds in traffic 
congestion. After an in-depth assessment, we concluded that under 
certain conditions the Werner system indeed failed to provide an 
accurate reporting of duty status or times. The agency required Werner 
to modify its GPS tracking and recording systems to ensure accurate 
documentation of drivers' duty status as mandated by 49 CFR Part 395.
    In March 2002, FMCSA revised its MOU with Werner to address 
recording methods and the use of algorithms in the recording and 
reporting processes.

[[Page 53389]]

The changes included eliminating certain default duty status entries as 
well as revising the method of recording CMV speed and, more important, 
distance traveled. According to item 13 of the revised MOU:

    Both Werner and the FMCSA acknowledge that the FMCSA does not 
find the current Werner GPS-based (point-to-point) methodology of 
recording mileage acceptable. Werner's GPS methodology consistently 
understates the distance traveled. Werner agrees to identify and 
implement an accurate means of determining distance traveled, within 
120 days of the signing of this agreement.

    In effect, the revised MOU required Werner to obtain engine data 
through the tractor's electronic communications network in order to 
provide an ``integral synchronization'' with the vehicle's operation.
    In December 2003 (68 FR 69117, Dec. 11, 2003), FMCSA published a 
notice of intent to grant an exemption to Werner Enterprises, Inc., 
thereby allowing the carrier to use GPS technology and complementary 
computer software programs to monitor and record its drivers' hours of 
service. The terms and conditions for the proposed exemption were the 
same as those of the revised MOU for the Werner pilot demonstration 
project, with a few exceptions. The need to rely on an exemption to 
allow Werner's use of these advanced technologies for RODS purposes 
underscores the importance of aligning EOBR performance specifications 
with state-of-the-art technologies.
    The comment period for this notice of intent ended on January 12, 
2004. Comments may be viewed at http://dms.dot.gov, Docket number 
15818.

Proposal To Mandate On-Board Recording Devices

    Both the 1988 final rule and the 1998 notice of interpretation 
allowed the use of automated recording systems as an alternative to 
handwritten RODS. However, the prospect of a mandatory use requirement 
for these systems has provoked concern and debate.
    On February 5, 1990, FHWA received from the National Transportation 
Safety Board (NTSB) Safety Recommendation H-90-28: ``Require automatic/
tamper-proof on-board recording devices such as tachographs or 
computerized logs to identify commercial truck drivers who exceed 
hours-of-service regulations.'' The NTSB classified this safety 
recommendation ``Closed--Unacceptable Action'' on July 7, 1998. While 
conceding that FHWA's ``deliberately paced research and symposium 
approach may yield useful information,'' the NTSB found ``no indication 
of aggressive research and prompt action to develop and require 
advanced technical solutions to address the intent of Safety 
Recommendation H-90-28.''
    On August 3, 1995, IIHS, Advocates for Highway and Auto Safety, and 
several other highway safety and advocacy organizations petitioned FHWA 
to require on-board recorders in CMVs. The petitioners believed the 
mandated use of these devices would improve hours-of-service 
compliance, thereby reducing the number of fatigued drivers and 
fatigue-related crashes.
    The DOT Office of Inspector General also referred to FHWA's 
proposed requirement for EOBRs in its report, Top Ten Management Issues 
(Report Number PT-2001-017, January 18, 2001, available at http://www.oig.dot.gov/control_numbers.php). The Office of Inspector General 
report stated:

    Driver hours-of-service violations and falsified driver logs 
continue to pose significant safety concerns. Research has shown 
that fatigue is a major factor in commercial vehicle crashes. During 
roadside safety inspections, the most frequent violation cited for 
removing a driver from operation is exceeding allowed hours of 
service. Use of electronic recorders and other technologies to 
manage the hours-of-service requirements has significant safety 
value. FMCSA's April 2000 proposed rulemaking would revise the hours 
of service by reducing the driving time allowed within a 24-hour 
period and by phasing in, over a period of years, the use of on-
board electronic recorders to document drivers' hours of service. 
The Congress prohibited the Department from adopting a final rule 
during FY 2001. FMCSA management should use this time to consider 
all of the comments received and revise the proposed rule as 
appropriate.

    In the final rule published in April 2003, however, the proposal 
for mandatory use of EOBRs was withdrawn (68 FR 22456, at 22488-22489, 
Apr. 28, 2003). We concluded that insufficient economic and safety 
data, coupled with a lack of support from the transportation community 
at large, did not justify an EOBR requirement at that time. We based 
these conclusions on the following:
    (1) Neither the costs nor the benefits of EOBR systems were 
adequately ascertainable, and the benefits were easier to assume than 
to accurately estimate.
    (2) The EOBR proposal was drafted as a performance standard, but 
enforcement officials generally preferred the concept of a design 
standard in order to facilitate data accessibility.
    (3) There was considerable opposition to the proposal to phase in 
the EOBR requirement, starting with large long-haul motor carriers--
those having more than 50 power units. Large carriers argued that this 
was irrational because small carriers generally have higher crash 
rates. Major operators also complained that the phase-in schedule would 
force them to pay high initial prices for EOBRs, while carriers allowed 
to defer the requirement would benefit from lower costs associated with 
increased demand, competition, and economies of scale.
    (4) There was considerable concern about the potential use of EOBR 
data for purposes other than hours-of-service compliance.
    The final rule on drivers' hours of service did contain assurances 
that research related to EOBRs and other technologies would continue. 
This ongoing research would include evaluation of ways to encourage or 
provide incentives for their use. Key research factors would include:
    (1) Ability to identify the individual driver;
    (2) Tamper resistance;
    (3) Ability to produce records for audit;
    (4) Ability of roadside enforcement personnel to access the hours-
of-service information quickly and easily;
    (5) Level of protection afforded other personal, operational, or 
proprietary information;
    (6) Cost; and
    (7) Driver acceptability.
    FMCSA requests comments on these research factors. In your view, 
are we considering the appropriate criteria for our research into 
EOBRs?
    Since publishing the final rule, we have concluded that we need 
additional, up-to-date information relating to the costs and benefits 
of using EOBRs. As a safety agency, we have a responsibility to 
evaluate the potential costs and benefits associated with requiring the 
use of these devices, even if we ultimately decide that voluntary use 
or incentives are better alternatives. In today's notice, we are 
requesting comments on the costs and benefits of a requirement to use 
EOBRs, including the relative costs and benefits of an industrywide 
requirement versus a more limited mandate on certain industry sectors, 
such as long-haul carriers. We are specifically interested in factors 
such as hardware acquisition (including modules for CMVs, equipment for 
communications between the CMV and the home terminal, vehicle-location-
reference systems, and use of satellite transponder channels); training 
of drivers and back-office personnel; equipment installation, 
maintenance, repair, and replacement;

[[Page 53390]]

and preservation of both electronic records and backup paper RODS, if 
necessary. In addition, we are interested in information relating to 
potential reductions in personnel costs derived from reduced checking 
and storage of RODS. Although we recognize that precise estimates might 
not be possible from motor carriers that have not adopted EOBR or 
related technologies, we would like to know their best estimates based 
on conversations they may have had with potential equipment or service 
vendors.
    With reference to hours-of-service violations, we are especially 
interested in hearing from motor carriers using EOBRs (or AOBRDs) 
instead of paper RODS. Any information such carriers could supply 
concerning their violation and out-of-service rates would be valuable 
for purposes of comparison with those rates at carriers not using EOBRs 
or AOBRDs.
    As important, we are requesting comments on the need to revise the 
general EOBR performance requirements, as provided in Sec.  395.15. In 
addition, we request information and comments concerning potential 
revisions to Sec.  395.15 for the purpose of developing a 
comprehensive, performance-based specification for EOBRs that would 
ensure maintenance of data integrity throughout all recording, 
transmission, storage, retrieval, and display processes. Our objective 
is to assess recording methods to improve hours-of-service compliance 
and oversight through the use of automated--including electronic--duty 
status records. This complements FMCSA's ongoing research into the 
potential of various technologies to assure that drivers are fit and 
alert behind the wheel.

Potential Contents of an EOBR Specification

    This advance notice of proposed rulemaking begins a process leading 
to clearer points of reference for EOBR system developers and users. We 
recognize the need to consider the ways that motor carriers' use of 
EOBRs could affect how they maintain documents on their operations. We 
also will consider how our compliance-assurance procedures, and those 
used by State and local enforcement officials, would need to change.

Clarification of Terminology

    Today's notice requests comments on potential new definitions for a 
performance-based specification for on-board recording devices. As 
noted previously, since most if not all of the current generation of 
on-board recorders collect, store, and display data electronically, we 
will call those devices EOBRs. However, many recording devices 
developed before the introduction of electronically controlled engines 
in the early 1990s may collect some data via mechanical sensors, 
transform the mechanical signal to an electrical one, and transmit the 
signal electronically.
    For the purpose of this rulemaking, we will use the generic term 
``EOBR.'' This would encompass any new devices as well as the AOBRDs 
that comply with the current definition at Sec.  395.2 and operational 
requirements at Sec.  395.15. However, we use the term ``AOBRD'' by 
itself to refer to the earlier-generation devices designed to comply 
with the current requirements.

Core Issues

    Electronic systems, although relatively costly to design and 
maintain compared with paper-based systems, have the capacity to 
eliminate a substantial amount of time-consuming manual data entry and 
review. We recognize the many challenges in gathering and recording 
data that is both accurate and sufficient in scope and detail to 
determine motor carriers' and CMV drivers' compliance with the hours-
of-service regulations. One such challenge is verification of non-
driving duty status information.
    As noted previously, this rulemaking is but one element of FMCSA's 
multipronged research effort concerning EOBRs. For example, Sec.  
395.15 should establish specific guidelines for ensuring accuracy, 
integrity, and security of data in the recording and storage of driving 
time information. Development of such guidelines could potentially 
entail: (1) A requirement for a means to identify system defaults 
impacting the accuracy and completeness of driving time records; (2) 
ready methods to pinpoint tampering (either during the recording 
process or after the fact) associated with capture and recording of 
driving time; and (3) a requirement for a means to ensure reliable 
identification of the particular driver whose driving time is being 
captured and recorded, including distinguishing between team drivers.
    Another core issue concerns the requirement in the current 
regulation for a device that is integrally synchronized with specific 
operations of the CMV in which it is installed. The intent is that the 
device provide ``ground truth'' for on-duty-driving. The on-board 
recorder must identify who drove the CMV and for how long. It must 
facilitate accurate entry of other duty status categories. Further, it 
must be designed to prevent duty status activity and time entries from 
being modified after the fact, while allowing drivers to enter 
explanatory information in the Remarks section.
    FMCSA recently conducted a study published as On-Board Recorders: 
Literature and Technology Review (Report No. FMCSA-RT-02-040, July 
2002). Through interviews with technology vendors and engine 
manufacturers, we learned that a number of products on the market 
provide some or all of the functions required under Sec.  395.15. 
Nevertheless, few vendors actively market these features or have 
developed products specifically to provide the hours-of-service 
recordkeeping function. The study attributed this fact both to lack of 
market demand and to vendors' uncertainty regarding the Federal 
requirements. Interviews conducted with FMCSA staff as part of the 
study revealed concerns about:
     Technology limitations--particularly regarding the ability 
of a single system to capture all data perceived as important;
     The need to clearly define current performance 
requirements, and whether the requirements are well understood by the 
motor carrier industry; and
     The extent to which the enforcement community is prepared 
to rely on on-board devices for determining hours-of-service 
compliance.
    A second study, Hours of Service (HOS) Research and Analysis 
Modules (January 2003), addressed in greater detail the potential for 
developing performance specifications for EOBRs. The five research 
modules cover data record structure and data security, engine control 
module and transmission control module use, georeferenced data, paper 
backup systems, and high-level architectures.
    To increase our understanding of how on-board recorders might be 
more efficiently designed and used, FMCSA requests comments on the 
issues discussed below. We also will appreciate your responses to the 
questions included on some of the issues. Issue sections are designated 
A through O, and questions within sections are numbered. Please 
reference these letter and number keys in your responses.
A. Synchronization of Recorder to a Vehicle Operation Parameter
    As noted previously, ensuring safe driving of commercial motor 
vehicles is at the heart of the hours-of-service regulations. An EOBR 
must be able to capture the data necessary to establish when a driver's 
duty status is ``on duty,

[[Page 53391]]

driving.'' The earliest AOBRDs captured this data using sensors--such 
as the speedometer or odometer circuit, or the tail shaft (output or 
drive shaft from an engine)--that reflected changes in vehicle motion. 
This data was combined with data from an internal clock to derive 
driving time. Advances in engine electronics allowed the data to be 
collected directly from the engine, presenting an opportunity to use 
the J1708 databus \3\ to transmit it to an EOBR. One manufacturer, 
Delphi Corporation, asked FMCSA if this method complied with the 
Federal Motor Carrier Safety Regulations. In a December 2003 letter to 
Delphi Corporation, we affirmed that it would.
---------------------------------------------------------------------------

    \3\ SAE standard, Serial Data Communications Between 
Microprocessor Systems in Heavy-Duty Vehicle Applications. Copyright 
1993, Society of Automotive Engineers, Inc.
---------------------------------------------------------------------------

    Some systems that track vehicle location using GPS technologies 
collect and record vehicle-position data only, inferring duty status 
based on software algorithms. As discussed earlier under GPS 
Technologies: Notice of Interpretation and Request for Participation, 
FMCSA became aware of at least one system that, in certain limited 
instances, did not provide accurate driving status information because 
of a combination of long polling intervals and preset system defaults. 
Thus, even though location data may be transmitted and recorded 
accurately, a motor carrier's or system operator's assumptions 
concerning changes in vehicle location between polling intervals, or 
data collection cycles (instances when vehicle location information is 
captured, along with the date and time), could result in incorrect duty 
status recordings. This would be particularly true if a driver failed 
to make entries in his or her on-board system to indicate that driving 
had begun. For example, a CMV moving slowly in a traffic stream through 
a construction zone might be traveling at less than a presumed driving 
speed, so that the duty status might be recorded as ``on-duty, not 
driving.'' Although drivers would presumably have an opportunity to 
correct their entries, they might not do so consistently.
    We request comments concerning the need for synchronization and 
possible alternatives to the current regulatory language.
B. Amendment of Records
    As noted earlier, the current regulatory guidance for Sec.  395.15 
(available on FMCSA's Web site at http://www.fmcsa.dot.gov/rulesregs/fmcsr/fmcsrguide.htm) covers three issues: maintenance of a second 
electronic copy of files, amendment of a completed record by the 
driver, and use of algorithms to identify the location of the driver's 
change in duty status. The agency's current guidance on the second 
issue is as follows:

    Question 2: May a driver who uses an automatic on-board 
recording device amend his/her record of duty status during a trip?
    Guidance: No. Section 395.15(i)(3) requires [that] automatic on-
board recording devices, to the maximum extent possible, be 
tamperproof and preclude the alteration of information collected 
concerning a driver's hours of service. If drivers who use automatic 
on-board recording devices were allowed to amend their record of 
duty status while in transit, legitimate amendments could not be 
distinguished from falsifications. Records of duty status maintained 
and generated by an automatic on-board recording device may only be 
amended by a supervisory motor carrier official to accurately 
reflect the driver's activity. Such supervisory motor carrier 
official must include an explanation of the mistake in the remarks 
section of either the original or amended record of duty status. The 
motor carrier must retain both the original and amended record of 
duty status.

    We are reevaluating this guidance in the light of current EOBR 
capabilities. The guidance reflects two assumptions: that amendments 
would likely be made to change information already entered; and that 
the time the revision is made (and the times and duty status being 
revised) would be erased from the EOBR's memory. The second assumption 
does not account for the EOBR's ability (an ability probably shared by 
many AOBRDs) to maintain an internal audit log.\4\ If the EOBR can 
accurately record the date and time of an entry, it could be programmed 
to prompt the driver to enter duty status or comments at any time the 
vehicle is stopped, the driver leaves the vehicle (if the vehicle has a 
door sensor), or the ignition is turned on or off. The EOBR also could 
prompt the driver to enter the time the work shift began and whether it 
included off-duty periods. We believe question 2 of the regulatory 
guidance may need to be revised to allow the driver to amend the duty 
status record, provided the system maintains both the original and 
amended records.
---------------------------------------------------------------------------

    \4\ The hardware-based data download requirement of 49 CFR Sec.  
395.15(b)(3) supports that assessment. See the discussion of this 
requirement later in this document.
---------------------------------------------------------------------------

    From a software perspective, this might be achieved through use of 
parallel data streams. One data stream would record the operation of 
the CMV using data and information contained in and extracted from 
other systems and devices on the vehicle. Examples include engine use 
information derived from engine control module (ECM) time and throttle 
position data; vehicle speed data, derived from throttle position and 
engine-on data; data on miles driven, from the odometer reading and 
time; and date and time data, from either the ECM clock or the internal 
clock on the recording unit. A second, overlying data stream would 
include the four categories of driver's duty status, along with remarks 
and other information used in the duty status reporting.
    FMCSA requests comments on this issue. We would particularly 
appreciate responses to the following questions:
    (1) Should FMCSA revise its definition of ``amend'' in the 
regulatory guidance for Sec.  395.15 to include or exclude certain 
specific activities? For example, should a driver be able to annotate 
the Remarks section to provide details of an activity being performed 
while he or she is in an on-duty-not-driving status? Should a driver be 
able to revise a record to change the amount of on-duty driving time 
recorded over a very short period (for example, while dropping a 
trailer at the home terminal)? Should a driver be able to revise a 
record to change the amount of driving time if he or she exits a 
vehicle while it is stopped in traffic upstream of a crash?
    (2) Should drivers be allowed to amend the duty status record if 
the system maintains both the original and amended records?
    (3) Should the agency maintain the blanket prohibition against 
drivers' amending a RODS generated by an AOBRD?
C. Duty Status Categories When the CMV Is Not Moving
    A significant number of hours-of-service violations are related to 
the on-duty-not-driving status, which onboard recorders are not 
designed to capture automatically (that is, without a driver's input). 
We understand that at least one commercial system defaults to an on-
duty-not-driving status when the CMV is stopped. The previously 
mentioned Werner system also was modified to default the driver's duty 
status to ``on-duty not driving'' when the vehicle is stationary and 
the driver has not made an entry.
    We request comments on this issue, and would particularly 
appreciate responses to the following question:
    If a driver is away from a parked CMV but has not entered a change 
in duty status immediately upon stopping the vehicle, how might the 
driver correct the entry, other than by printing a hard copy of the 
day's RODS and making a handwritten entry?

[[Page 53392]]

D. Ensuring That Drivers Are Properly Identified
    Establishing and enforcing appropriate use and documentation 
requirements could improve linkage of operational data to the specific 
driver's activities. A fundamental requirement would be to ensure that 
duty status data accurately identifies the driver. Many information 
technology applications use personal identification numbers and/or 
smart cards. In some situations where the need for identification and 
verification is critical for security reasons, some types of biometric 
identifiers are being used and others are being explored. FMCSA 
requests comments on this issue.
E. Reporting and Presentation (Display) Formats
    A standardized reporting format is important for ensuring a clear 
and unambiguous duty status record. This helps establish the sequence 
and timing of events and facilitates verification of regulatory 
compliance. Although State roadside enforcement officials conducting 
vehicle and driver inspections generally review only a single driver's 
(or a pair of team drivers') records at a time, these safety personnel 
work under time constraints and often-stressful conditions. We have 
received numerous reports of State enforcement officials who purposely 
avoid reviewing EOBR and electronic records because they are unfamiliar 
with their appearance and unsure they can review them accurately and 
efficiently.
    Reviews of driver records by motor carrier safety officials 
responsible for assuring fleet compliance, as well as those conducted 
by enforcement officials at a carrier's business office, differ from 
those conducted by roadside inspectors. During onsite reviews, safety 
or enforcement officials consider both individual and collective 
driving records in order to determine whether patterns of noncompliance 
may exist.
    The intent of Sec.  395.15 is to require that an electronically 
produced record of duty status contain the same information as a 
handwritten record. The 13 items required by regulation for AOBRD-
generated duty status records (Sec.  395.15(c) and (d)) are identical 
to those required for manually produced RODS (Sec.  395.8 (b), (c), and 
(d)), with two exceptions. Section 395.15 does not include a 
requirement for a driver's certification and signature, nor does it 
explicitly provide for a Remarks section. The driver's signature is 
unnecessary because, under Sec.  395.15(h)(3), submission of the record 
certifies that all entries made are true and correct. A Remarks section 
is not mandatory because there is no practical means for the driver to 
enter miscellaneous comments or information into an on-board recorder.
    FMCSA is interested in developing a performance-oriented reporting 
standard that would serve officials conducting roadside inspections and 
compliance reviews. Since motor carriers and the traveling public would 
benefit from the prevention of regulatory violations, this reporting 
standard should help motor carriers facilitate their own internal 
review activities. Your comments on the following two issues would 
assist us in developing such a standard:
    (1) Visual record--Although Sec.  395.15(i)(5) does not specify 
details of how information is displayed on the screen of an AOBRD, 
Sec.  395.15(b)(3) requires information support systems-- separate from 
the on-board device--to comply with the requirements of Sec.  395.8(d), 
including the use of a graph grid. We request comments on potential 
performance-oriented specifications for the display on the EOBR as well 
as for support systems that would provide a clear visual record while 
affording greater flexibility to those who design and use EOBRs. 
Comments from the law enforcement community would be especially 
helpful.
    (2) Data interchange standards--Section 395.15(b)(3) states that 
EOBR support systems should meet the information interchange 
requirements of ``American National Standard Code for Information 
Interchange EIARS-232/CCITT V.24 port.'' This refers to the RS-232 
serial communications standard \5\ that was state-of-the-practice in 
the 1980s. Although some devices continue to use this interface, it has 
been supplanted in many applications. Furthermore, as a hardware 
communications standard, it does not address data formatting or 
content. We request suggestions concerning current and emerging data 
interchange standards for hardwired and wireless communications that 
would ensure the integrity of both data content and data formats. Your 
comments on other issues related to recording, reporting, and 
presentation (display) formats also would be helpful.
---------------------------------------------------------------------------

    \5\ RS-232C is a long-established standard (``C'' is the current 
version) that describes the physical interface and protocol for 
relatively low speed serial data communication between computers and 
related devices. It was defined by an industry trade group, the 
Electronic Industries Association (EIA), originally for 
teletypewriter devices. (Source:  http://searchnetworking.techtarget.com)
---------------------------------------------------------------------------

F. Audit Trail
    In connection with the necessity for tamper resistance in an EOBR, 
we are carefully considering the process of recording and identifying 
information in the form of an audit trail or event log. An important 
design feature would be user-friendly interface(s) to support not only 
motor carriers' internal reviews, but also reviews by FMCSA safety 
officials and roadside inspections by our State partners under the 
Motor Carrier Safety Assistance Program. The information from an EOBR--
including audit trail data--may need to be made available at a motor 
carrier's place of business on demand (as during a compliance review).
    An audit trail must reflect the driver's activities while on duty 
and tie them to the specific CMV(s) the driver operated. Its design 
must balance privacy considerations with the need for a verifiable 
record. The audit trail should automatically record a number of events, 
including (1) Any authorized or unauthorized modifications to the duty 
status records, such as duty status category, dates, times, or 
locations, and (2) any ``down'' period `` for example, one caused by 
the onset of device malfunction. In addition, the system should provide 
a gateway for electronic or satellite polling of CMVs in operation, or 
for reviewing electronic records already downloaded into a central 
system. This capability would permit reviewers to obtain a detailed set 
of records to verify time and location data for a particular CMV.
    The presentation should include audit trail markers to alert safety 
officials, and personnel in the motor carrier's safety department, to 
records that have been modified. The markers would be analogous to 
margin notes and use highlighted code.
    FMCSA requests comments on this issue.
G. Ability To Interface With Third-Party Software for Compliance 
Verification
    It has been suggested that EOBR systems should be capable of 
interfacing with third-party auditing software packages, such as those 
used to verify point-to-point roadway distances. Others have suggested 
that hours-of-service compliance be verified instead through direct 
access to driver and motor carrier routing and scheduling data. Those 
favoring the latter method believe it could be most useful in the 
context of a compliance review, where safety officials must request the 
motor carrier's direct assistance and cooperation to access the 
carrier's systems. A special set of interfaces,

[[Page 53393]]

including views of specific information relevant to compliance, might 
be needed to enable safety officials to review the information they 
require.
    We request responses to the following questions, as well as 
comments on other concerns related to the use of third-party software 
for compliance verification:
    (1) What experience have motor carriers and roadside enforcement 
officials had using third-party software for compliance verification?
    (2) What experience have motor carriers had using third-party 
software for purposes of scheduling, hours-of-service compliance 
review, and auditing?
    (3) What experience have motor carriers had assisting FMCSA with 
extensive reviews of records of duty status that are maintained only in 
electronic form? Would third-party software have helped or hindered the 
process?
H. Verification of Proper Operation
    Some electronic devices and systems on vehicles (such as antilock 
brake systems on cars and trucks) perform a power-on self-test. It 
might be possible to develop such a preprogrammed in-service test 
protocol for EOBRs that could be performed by safety officials at 
roadside. A test of this type might provide a limited amount of ``go/
no-go'' information `` such as whether the communications line between 
the vehicle and the recorder is intact, whether the clock has been 
reset, and the status of other specific system elements.
    FMCSA requests responses to the following questions, as well as 
comments on other issues related to verification of proper operation:
    (1) What experience have roadside enforcement officials had using 
third-party software for compliance verification?
    (2) How would a driver, a supervisor reviewing records, or a safety 
official verify that a recorder and the systems to which it is linked 
are operating properly?
    (3) How would a roadside safety official or FMCSA compliance 
official perform that verification?
    (4) Should a device be able to produce the results of its original 
and/or most recent acceptance or certification tests?
    (5) Could a device be configured to produce an ``electronic audit'' 
on demand?
    (6) How would audits be performed on disabled or inoperable units?
    (7) How long should a driver be allowed to operate a CMV while the 
EOBR is not functioning, provided the driver is maintaining paper RODS?
    (8) How would downtime, repair, and recalibration be documented?
    (9) Should a unit be marked with its calibration data/record? If 
so, how should the unit be marked?
I. Testing and Certification Procedures
    We are considering whether there is a need for the agency to 
establish detailed functional specifications for EOBRs, rather than 
continuing to rely upon the current generic performance standards under 
Sec.  395.15(i). In addition, we are considering whether the current 
process of manufacturers' self-certification should be continued. The 
functional specifications would include standard performance criteria 
and compliance test procedures. If manufacturers (or independent third 
parties) were to perform tests according to FMCSA's compliance testing 
procedures, the agency could then offer to certify certain devices `` 
or possibly designs for devices `` as complying with the functional 
specifications. Parties performing the certification would need to 
obtain a device (or a sufficiently advanced prototype) to test.
    This raises two issues: the propriety of FMCSA's rejecting a 
device, and the circumstances under which enforcement action should be 
taken.
    If, during initial testing, the device were found not to meet the 
requirements of a published functional specification, FMCSA could 
unquestionably reject it. If, on the other hand, FMCSA certified an 
EOBR (and/or software) to which the manufacturer later made design 
changes, and the manufacturer's modifications diverged from one or more 
of the agency's functional specifications, the EOBR and/or software 
would no longer comply with our requirements. In such a case, immediate 
enforcement action against motor carriers found to be using the 
modified EOBR (or software) might not be appropriate. FMCSA might 
instead publish a Federal Register notice describing the noncompliance 
situation, and giving motor carriers an opportunity to check and 
recalibrate the affected EOBRs (or to otherwise ensure the devices 
operate within specified parameters). Any motor carriers that failed to 
comply with the terms of the Federal Register notice could then be 
subject to enforcement action, whether by FMCSA alone or in concert 
with other Federal agencies. One possible approach might be a public 
interest exclusion (PIE) similar to that used in 49 CFR part 40, 
subpart R. The purpose of a PIE is to protect the public interest from 
serious noncompliance with the requirements.
    The European Union (EU) Type Specification for Electronic 
Tachographs, European Union Directive 2135/98,\6\ provides an extensive 
and complex design specification for the hardware, software, and data 
storage and auditing functions of an electronic on-board recorder. 
While some characteristics of the design specification, particularly 
the basic recording and data storage requirements, may lend themselves 
to adaptation, the software design and recording media requirements 
were developed to respond to the EU's desire for an integrated system 
for on-vehicle recorders and recordkeeping systems and, as such, are 
highly prescriptive and complex. In addition, although the type 
specification for these devices was finalized in 1998, the date for 
mandatory installation of the electronic tachographs in new commercial 
vehicles, originally set for August 2002, has repeatedly been revised. 
It currently is set for August 2005.
---------------------------------------------------------------------------

    \6\ Council Regulation (EC) No. 2135/98 of 24 September 1998 
amending Regulation (EEC) No. 3821/85 on recording equipment in road 
transport and Directive 88/599/EEC concerning the application of 
Regulations (EEC) No. 3820/84 and (EEC) No. 3821/85. This regulation 
is available on the Internet at http://europa.eu.int/eur-lex/en/lif/reg/en_register_07204020.html, where it is identified by the 
number 31998R2135.
---------------------------------------------------------------------------

    Furthermore, the EU enforcement community expressed a number of 
concerns about perceived differences, incompatibilities, and 
inconsistencies between the current manual-tachograph regulation and 
the proposed electronic-tachograph regulation. There have also been 
concerns about the published requirements for data downloading and the 
utility of the devices for roadside enforcement. See D. M. Freund, 
Working Paper, On-board automated recording for commercial motor 
vehicle drivers' hours-of-service compliance: the European experience, 
August 2001.
    We request responses to the following questions concerning testing 
and certification procedures. We also welcome any other comments 
relevant to this issue.
    (1) Who could perform certification tests? Should they be done by 
FMCSA, by another Federal agency, or by an independent third party 
according to procedures and documentation requirements set forth in 
regulation?
    (2) Should FMCSA continue to allow manufacturers of these devices 
to self-certify them? Why, or why not?
    (3) Should FMCSA develop a list of approved devices, similar to the 
Conforming Products List maintained by

[[Page 53394]]

the National Highway Traffic Safety Administration? \7\
---------------------------------------------------------------------------

    \7\ The National Highway Traffic Safety Administration maintains 
its Conforming Products List under the designation NTI-131. See 69 
FR 42237 (July 14, 2004) for the most recent amendment.
---------------------------------------------------------------------------

    (4) As noted above, FMCSA is aware of the European Union's detailed 
design specification that is part of Regulation 2135/98 for electronic 
tachographs. At this time, we believe the extraordinarily detailed 
database specification in the Appendix to Regulation 2135/98 would be 
too complex and costly, both for motor carriers and their EOBR 
suppliers to implement and for FMCSA to review. What are your views on 
this matter?
J. EOBR Maintenance and Repair
    The current regulation (Sec.  395.15(i)(4)) requires the AOBRD to 
provide the driver with an audible and/or visible warning when it 
ceases to function. However, the types or degree of malfunction (such 
as loss of power source, loss of linkage to sensors, loss of ability to 
record, loss of ability to display) are not specified. While the 
requirement at Sec.  395.15(i)(7) for the on-board recording device/
system to identify ``sensor failures and edited data when reproduced in 
printed form'' [emphasis added] does address the question of data 
integrity, it nevertheless omits any requirement that such data be 
identified in an electronic record (i.e., one that is not printed).
    We request responses to the following questions related to EOBR 
maintenance and repair:
    (1) Is it feasible to design the EOBR to record the malfunction 
event (including its nature, date, and time) automatically `` that is, 
within the EOBR's memory?
    (2) Are there circumstances that could prevent automatic capturing 
of this information? Please describe them. In such cases, should the 
driver record the malfunction event on a paper RODS?
    (3) Section 395.15(i)(8) of the current regulations addresses 
maintenance and calibration of AOBRDs. It states that these devices 
``must be maintained and recalibrated in accordance with the 
manufacturer's specifications.'' Is this requirement sufficient? Should 
the agency consider requiring that repair and recalibration be 
performed only by an approved source? Who should certify repair 
stations, and how could this be done?
    (4) The current regulations do not address EOBR maintenance 
records. Motor carriers' CMV maintenance records must document 
installation, malfunction, failure, repair, and recalibration. Since 
the initial manufacturer places an identification and certification 
plate on the device, should installation, repair, and recalibration 
activities be documented by the approved source (see question 3), the 
motor carrier, or both? Should entities authorized to perform repair 
and maintenance be required to comply with FMCSA requests for access to 
their facilities and to documents concerning their work performed for 
motor carrier clients?
    (5) Although the current regulations do not address how long a CMV 
equipped with an EOBR could continue to be operated after the device 
failed, they do require drivers to reconstruct the RODS for the current 
day and the past 7 days (less any days for which drivers have records), 
and to continue to prepare a handwritten record of all subsequent duty 
status until the device is again operational (Sec.  395.15(f)). Should 
FMCSA require repair or replacement of an EOBR within a specific number 
of days?
    (6) Manufacturers and suppliers: What types of periodic maintenance 
and calibration do AOBRDs and EOBRs require? How often do they require 
such maintenance, and what is the typical direct cost?
    (7) Manufacturers and suppliers: What is the typical lifespan of an 
AOBRD? What is the typical lifespan of an EOBR? Is there any salvage 
value to either device?
K. Development of ``Basic'' EOBRs To Promote Increased Carrier 
Acceptance
    Motor carriers and drivers expend a significant amount of time, 
effort, and money to complete, file, review, and store paper RODS. 
According to the most recent FMCSA estimate, it takes 6.5 minutes for a 
CMV driver to complete a RODS and an additional 3 minutes for a motor 
carrier to review it. Because more than 4.2 million CMV drivers must 
complete and file their RODS, drivers spend more than 110 million hours 
each year completing these records. Motor carriers must devote another 
51 million hours annually to reviewing and storing the records. The 
agency estimates the cost of completing, filing, reviewing, and 
maintaining these records at $63.3 million annually.
    Many commercially available on-board recorders and support systems 
offer drivers and motor carriers the opportunity to better plan their 
schedules and routes, monitor the performance of their vehicles, and 
use this information to improve safety and operational productivity.
    However, many of these advanced systems may come with a high price 
tag, perhaps too high for most small motor carriers and independent 
drivers. For this reason, we are interested in exploring the 
development of a performance-based specification for a minimally 
compliant EOBR. A minimally compliant device would provide the 
electronic-data equivalent of an accurate RODS yet be more affordable 
for small motor carriers and independent drivers.
    We request comments on the concept of such a performance 
specification.
L. Definitions--Basic Requirements
    FMCSA requests comments on the following possible definitions of 
terms, including proposed basic requirements:
    (1) AOBRD means an automatic on-board recording device as defined 
in 49 CFR 395.2.
    (2) EOBR means an electronic on-board recorder used to record a CMV 
driver's hours of service in order to provide documentation to 
determine compliance with 49 CFR Part 395. An EOBR has features 
providing additional functions beyond those of an AOBRD. It must 
provide a means to record and store the date and time of each data 
entry, the status of the engine (on/off), and the location of the CMV. 
The EOBR also must calculate and display the distance traveled and the 
road speed. Definitions of these data elements follow.
    (3) Date and time: The date and time must be obtained via a signal 
that cannot be altered by a motor carrier or driver. The signal may be 
obtained from a source that is internal or external to the CMV.
    (4) Engine on/off: The signal indicating whether the engine is on 
or off must be taken from the ECM on those engines so equipped. On 
vehicles not equipped with an ECM (i.e., those manufactured before the 
late 1980s), the signal must be taken from the tail shaft. The engine 
status must be monitored and recorded at intervals of 1 second or less, 
as well as when an engine on/off event occurs.
    (5) Location: The physical location of a CMV. At a minimum, the 
location must be recorded at each change of duty status. The location 
description for the duty status change must be sufficiently precise to 
enable enforcement personnel to quickly determine the vehicle's 
geographic location on a standard map or road atlas. The location data 
must be entered by the driver or via signal(s) received from an 
independent source external to the vehicle. FMCSA seeks comment on how 
frequently such an external signal determines the vehicle location 
entry, and whether specific events such as ignition shutoff should 
automatically trigger a signal.

[[Page 53395]]

    (6) Distance traveled: Miles traveled that day for each driver 
operating the CMV. The EOBR must derive the distance traveled from a 
source internal to the vehicle (for example, tail shaft data recorded 
on the ECM).
    (7) Road speed: Must be derived using distance-traveled data from a 
source internal to the CMV (usually the ECM). The data must be 
monitored and recorded at intervals of 1 second or less. An AOBRD or 
EOBR is deemed to be integrally synchronized when it receives and 
records the engine and date/time information from a source or sources 
internal to the CMV.
M. Potential Benefits and Costs
    Benefits. In general, motor carriers could be expected to derive 
both safety compliance and operational productivity benefits from 
EOBRs. Fundamentally, the use of EOBRs could improve hours-of-service 
compliance, potentially increasing highway safety. This could be 
accomplished in several ways. First, because these devices document 
driving hours more accurately and precisely than can paper RODS, they 
could help deter excessive hours behind the wheel. Second, EOBR data 
can be made more readily available to motor carriers to improve their 
efficiency of assigning drivers to particular runs, and to ensure those 
drivers' compliance throughout the trip. Third, the presence of EOBRs 
would serve as a tangible reminder to both motor carriers and drivers 
that compliance with the hours-of-service regulations is taken 
seriously. Last, increased use of the devices could set a positive 
example for the industry, and counteract the proclivity of some 
carriers to compete on the basis of noncompliance with the hours-of-
service regulations.
    Another potential benefit of EOBR use would be to improve motor 
carriers' operational productivity. Use of these devices, especially in 
conjunction with appropriate automated review and monitoring software, 
could provide for more accurate documentation of vehicle and driver 
operations in a form that is amenable to automated review. FMCSA 
estimates that these automatic on-board recording devices reduce 
substantially, by as much as 90 percent, the time involved in 
preparing, filing and storing paper. Additionally, on-board recording 
devices could be integrated with other operations or logistics 
management systems. They also may be installed as an accessory to some 
vehicle productivity and safety monitoring systems, as well as take 
advantage of interfaces with real-time communications systems.
    Costs. On the other hand, there may be a number of concerns and 
potential limitations regarding the adaptability of state-of-the-art 
EOBRs to hours-of-service compliance assurance. Currently available 
devices cannot discriminate among the myriad activities that constitute 
on-duty-not-driving, nor can they differentiate on-duty-not-driving and 
off-duty activities.
    Further, many motor carriers have expressed substantial concerns 
about costs and benefits of current on-board recorders. EOBRs can be 
costly both to purchase and to operate. Estimates of installed costs 
per unit range from $500, for hardware supplied to an original 
equipment manufacturer for installation in a new vehicle, to $3,000 for 
installation of a retrofit unit in an in-service CMV. The cost, 
particularly at the lower end of the scale, does not include back-
office systems for data tracking, verification, and information 
management, or training for drivers and others.
    In the 1990s, FHWA engaged the University of Michigan 
Transportation Research Institute to study the applicability of on-
board recorders to motor carrier operations. Motor carrier fleet 
response rates for this study were very low, possibly because of early 
adverse industry commentary on the study. The study, completed in late 
1998, found that: (1) Large fleets were far likelier to use on-board 
recorders, and (2) mandatory on-board recorder use was overwhelmingly 
viewed as requiring extremely high expenditures for minimal operational 
benefits. Significantly, FMCSA data indicate that 90 percent of motor 
carriers operate fewer than nine trucks or buses.
    The degree of benefit provided by an EOBR depends upon whether and 
how it is used. Motor carriers will not benefit merely from installing 
an EOBR; they must use and act upon the EOBR data. If a motor carrier 
has not made the fundamental commitment to operate safely and fails to 
review and act upon the EOBR data, the potential safety influence of 
the device will be limited.
    FMCSA requests responses to the following questions concerning 
benefits and costs:
    (1) What have been the safety, operational, and compliance benefits 
experienced by motor carriers with actual use of AOBRDs or EOBRs?
    (2) What have been the driver hours-of-service violation rates, 
out-of-service rates, and crash experience of motor carriers using 
AOBRDs or EOBRs?
    (3) What cost savings have motor carriers using AOBRDs or EOBRs 
experienced as a result of paperwork reduction, reduced time in 
reviewing RODs, and other efficiencies?
    (4) In general, how is training on EOBR use presented to drivers, 
dispatchers, and other motor carrier employees? How many hours of 
training are typically required for drivers? Please estimate the direct 
costs of this training. How many hours of training are typically 
required for dispatchers and other back-office staff? Please estimate 
the direct costs of this training.
    (5) What would be the typical cost of a typical EOBR that is 
minimally compliant with the current regulations? Would there be 
differences in the cost for a device installed at the time of the 
vehicle's manufacture and the cost of an aftermarket product? Please 
describe.
    (6) What do manufacturers of on-board computer and communications 
systems typically charge motor carriers to incorporate in their systems 
EOBR capabilities satisfying the requirements of Sec.  395.15? Please 
also include estimates of the costs of back-office systems.
N. Incentives To Promote EOBR Use
    FMCSA believes EOBRs have the potential to improve motor carriers' 
compliance with the hours-of-service regulations, and to provide for 
more efficient, effective, and economical documentation and review of 
drivers' records of duty status. FMCSA requests comments on what other 
incentives could help to promote the use of EOBRs.
O. Miscellaneous Questions
    We also request responses to the following questions:
    (1) Should FMCSA propose requiring that motor carriers in general, 
or only certain types of motor carrier operations, use EOBRs?
    (2) How reliable are current-generation EOBRs?
    (3) What is the minimum information FMCSA should require an 
automatic or electronic on-board recorder to capture automatically, 
without any input from the driver or external sources?
    (4) What information should drivers be required to enter into the 
on-board recorder, and how could that information be verified?
    (5) For EOBRs that receive location information or raw latitude and 
longitude information via electronic signals from GPS technologies or a 
similar system, what minimum level of accuracy should FMCSA require 
with regard to the likely distance between the indicated and actual 
location of the CMV?
    (6) What types of technology should be used to verify, to the 
greatest extent practicable, the identity of the person

[[Page 53396]]

who is operating the vehicle when the EOBR is recording the time as 
driving time?
    (7) Should FMCSA require that if a memory storage device such as a 
smart card is used, the on-board system also must store information 
about the driver's identity and provide information concerning the 
times the storage device was entered and removed, what information was 
accessed, and by whom?
    (8) Should the use of a particular file transfer protocol (XML or 
other) be considered for data capture? Should any such requirement 
specify use of an open-source protocol?
    (9) What regulatory changes could FMCSA initiate to encourage 
greater usage of EOBRs in the trucking and motorcoach industries? For 
example, should we reduce our record retention requirement for motor 
carriers that use EOBRs?
    (10) Manufacturers and suppliers: Approximately how many AOBRDs and 
EOBRs are currently in use? Describe the general characteristics of 
motor carriers (size, commodities transported, and geographical scope 
of operations) that use devices with limited functionality and of those 
using devices with comprehensive functionality.
    (11) Manufacturers and suppliers: What types of data would it be 
inappropriate for an EOBR to record? That is, should any data be off-
limits?
    (12) Manufacturers and suppliers: When AOBRDs and EOBRs are 
manufactured or repaired, are solvents or other substances used that 
could have environmental or driver health consequences if they are not 
disposed of properly? Do the devices contain components or materials 
(including hazardous materials) that could generate adverse 
environmental or driver health consequences if not disposed of 
properly?
    (13) How are EOBRs typically disposed of?

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory

Policies and Procedures

    FMCSA believes that this rulemaking is a significant regulatory 
action within the meaning of E.O. 12866, and is significant within the 
meaning of the U.S. Department of Transportation's regulatory policies 
and procedures (DOT Order 2100.5, May 22, 1980; 44 FR 11034, February 
26, 1979) because of significant public interest in issues related to 
motor carrier compliance with the Federal hours-of-service regulations. 
The Office of Management and Budget has reviewed this advance notice of 
proposed rulemaking under E.O. 12866. We would appreciate responses 
from the public to our questions on the potential costs and benefits of 
this rulemaking. This will help us better determine the level of 
significance of any subsequent rule regarding EOBR performance 
specifications and use.

Regulatory Flexibility Act

    To meet the requirements of the Regulatory Flexibility Act (5 
U.S.C. 601-612), FMCSA will evaluate the effects of this rulemaking 
action on small entities and make a preliminary determination that a 
regulation arising from this proceeding would have a significant 
economic impact on a substantial number of small entities.
    Although this document does not make any specific proposal, we 
believe it could lead to a proposed rule with a significant potential 
impact on small motor carriers. FMCSA requests small entities to 
comment on the questions asked in this advance notice (specifically, 
questions related to the costs and benefits of compliance) so that we 
may accurately determine the economic impacts any proposal would have 
on small entities. In addition, we request small entities to comment on 
other issues that are of particular concern to them, such as the 
timeframe for implementation. This will help us to minimize any such 
impacts.

Executive Order 13132 (Federalism)

    FMCSA has analyzed this ANPRM in accordance with the principles and 
criteria in Executive Order 13132 (Federalism). We have determined that 
this ANPRM does not have a substantial direct effect on States, nor 
would it limit the policymaking discretion of the States. Nothing in 
this document preempts any State law or regulation. Should FMCSA decide 
to issue a notice of proposed rulemaking dealing with electronic on-
board recorders, the agency would evaluate any federalism implications 
of the proposal.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities do not apply to this program.

Paperwork Reduction Act

    Under the Office of Management and Budget (OMB) regulations, at 5 
CFR part 1320, Controlling Paperwork Burdens on the Public (1995), 
FMCSA is required to estimate the burden that new regulations would 
impose in the course of generating, maintaining, retaining, disclosing, 
or providing information to or for the agency. We believe that 
rulemaking action in response to information submitted to the docket 
could effect changes that would substantially reduce the collection of 
information requirements that are currently approved.
    On March 4, 2002, OMB approved the agency's request to renew or 
revise the information collection (IC) for the Driver's Record of Duty 
Status. This approval includes the driver's record of duty status under 
49 CFR 395.8 and the time card alternative under 49 CFR 395.1(e). OMB 
assigned control number 2126-0001 to this information collection. FMCSA 
estimated the annual burden of this information collection to be 
161,364,492 hours, at a cost to the public of $63.7 million.
    In anticipation of a regulatory action making certain motor 
carriers of passengers subject to the requirements of part 395 (among 
other regulations), FMCSA submitted a request to OMB to revise this 
information collection. OMB approved this revision on December 20, 
2002, with an expiration date of December 31, 2005. The revised 
estimated annual time burden was 162,200,492 hours, and the revised 
annual cost was estimated at $64 million. OMB approved FMCSA's most 
recent request to revise this information collection on April 29, 2003, 
and it will expire on April 30, 2006. The latest revised estimated 
annual time burden is 160,376,492 hours, with an estimated annual cost 
of $63.3 million. This revision was due to the agency's implementation 
of a final rule, entitled ``Hours of Service of Drivers: Driver Rest 
and Sleep for Safe Operations,'' that resulted in an estimated 48,000 
fewer drivers being subject to the drivers' requirements covered by 
this information collection. In addition, the title of this IC has been 
changed from Driver's Record of Duty Status to Hours-of-Service of 
Drivers Regulations. This change was proposed in the NPRM, and no 
comments regarding the name change were received.
    If this advance notice of proposed rulemaking leads to a rule that 
increases motor carriers' use of EOBRs, the annual time burden should 
decrease because the time required to create each record is 
considerably lower for electronic records than for paper records.

Background of Past OMB Approvals

    OMB Control Number: 2126-0001.

[[Page 53397]]

    Title: [Old]: Driver's Record of Duty Status (RODS). [New]: Hours-
of-Service of Drivers Regulations.
    As indicated earlier in the ``Legal Basis'' section, both the Motor 
Carrier Act of 1935 and the Motor Carrier Safety Act of 1984 allow the 
Secretary of Transportation (Secretary) to promulgate regulations that 
establish maximum hours of service of drivers employed by motor 
carriers. The Secretary has adopted regulations that require 
information to be recorded in a specified manner. FMCSA regulations 
allow motor carriers to make electronic records produced through the 
use of automatic on-board recording devices, in lieu of keeping paper 
records. FMCSA estimates that these automatic on-board recording 
devices reduce substantially, by as much as 90 percent, the time 
involved in preparing, filing and storing paper. FMCSA believes that 
the use of automatic on-board recorders continues to be uncommon and is 
unlikely to grow significantly under the current regulations.
    The RODS must be maintained with all supporting documents for a 
period of 6 months from the date of the record. FMCSA believes the 
recordkeeping requirements are necessary for motor carriers and drivers 
to properly monitor compliance with the hours-of-service regulations. 
They also are necessary for Federal, State and local officials who are 
charged with monitoring and enforcing hours-of-service regulations. The 
hours-of-service regulations were promulgated to promote the safe 
operation of CMVs, and we believe this recordkeeping requirement is not 
duplicative of information that would otherwise be reasonably 
accessible to FMCSA.
    FMCSA estimates there are 6,410,430 commercial motor vehicle 
drivers who are subject to the hours-of-service regulations. However, 
not all of these drivers are necessarily subject to the RODS paperwork 
requirement. For instance, FMCSA estimates that 25 percent of Local 
Delivery drivers are eligible to use the 100-air-mile-radius exception 
in Sec.  395.1(e) in lieu of preparing paper RODS as required under 
Sec.  395.8. This group of drivers is unlikely to use EOBRs since their 
recordkeeping requirements can be met with time cards. Therefore, we 
assume here that the remaining 75 percent of Local Delivery drivers who 
are subject to the hours-of-service regulations would be potential 
users of automated on-board recorders. Below is a breakdown of the 
total number of CMV drivers subject to the hours-of-service regulations 
and, for the purposes of this ANPRM, the estimated percentage of 
drivers within each category who would be potential users of automated 
on-board recorders:
    Long-Haul Drivers: 366,304 (100 percent are assumed to be potential 
EOBR users).
    Regional Drivers: 834,363 (100 percent are assumed to be potential 
EOBR users).
    Local Delivery Drivers: 3,997,023 (75 percent, or 2,997,767, are 
assumed to be potential EOBR users).
    Local, Services Drivers: 1,190,740 (zero percent are assumed to be 
potential EOBR users).
    Long-Haul Commercial Van Drivers: 22,000 (100 percent are assumed 
to be potential EOBR users).
    Multiplying the above estimates of drivers in each group by the 
estimated percentages constituting potential EOBR users yields a total 
of 4,220,434 CMV drivers. This is FMCSA's estimate of the number of CMV 
drivers subject to the RODS paperwork requirement and, for the purposes 
of this ANPRM, the number we assume would be potential EOBR users. 
(More information on the above driver estimates is available at 67 FR 
1396 (Jan. 10, 2002) under Docket number FMCSA-2001-9688.) FMCSA 
welcomes comments and alternative estimates regarding the number of 
applicable CMV drivers discussed above.
    Recordkeepers/Respondents: Approximately 4,220,434 CMV drivers.
    Average Burden per Response: 6.5 minutes for drivers to prepare the 
daily record of duty status; 3 minutes for motor carriers to review and 
file records of duty status and all supporting documents.
    Estimated Total Annual Burden: The estimated total annual burden is 
160,376,492 hours.
    Collection of Information Frequency: RODS: Every day of the year. 
Two or more days off duty may be kept on one record. Supporting 
documents: Collection must occur during every workday.
    Estimated Annual Hour Burden for the Information Collection: 
Interested parties are invited to send comments regarding any aspect of 
these information collection requirements, including but not limited to 
(1) Whether the collection of information is necessary for the 
performance of FMCSA functions, including whether the information has 
practical utility; (2) the accuracy of the estimated burden; (3) ways 
to enhance the quality, utility, and clarity of the collected 
information; and (4) ways to minimize the collection burden without 
reducing the quality of the information collected.
    If you submit comments to the Office of Management and Budget 
concerning the information collection requirements of this document, 
your comments will be most useful if received at OMB by November 30, 
2004. You must mail, hand deliver, or fax your comments to: Attention: 
Desk Officer for the Department of Transportation, Docket Library, 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Room 10102, 725 17th Street, NW., Washington, DC 20503; fax: 
(202) 395-6566.

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. 
Accordingly, FMCSA has prepared a Preliminary Environmental Assessment 
(PEA) for this advance notice of proposed rulemaking. The PEA is 
available in the docket. We invite all interested parties to submit 
public comments on this PEA.

List of Subjects in 49 CFR Part 395

    Global positioning systems, Highway safety, Highways and roads, 
Intelligent Transportation Systems, Motor carriers, Motor vehicle 
safety, Reporting and recordkeeping requirements.

    Issued on: August 27, 2004.
Warren E. Hoemann,
Deputy Administrator.
[FR Doc. 04-19907 Filed 8-27-04; 1:30 pm]
BILLING CODE 4910-EX-P