[Federal Register Volume 72, Number 11 (Thursday, January 18, 2007)]
[Proposed Rules]
[Pages 2340-2394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-56]



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Part II





Department of Transportation





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Federal Motor Carrier Safety Administration



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49 CFR Part 350, et al.



Electronic On-Board Recorders for Hours-of-Service Compliance; Proposed 
Rule

  Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / 
Proposed Rules  

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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: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
proposes to amend 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 the date 2 years following the effective date 
of a final rule. On-board hours-of-service recording devices meeting 
FMCSA's current requirements and voluntarily installed in CMVs 
manufactured before the implementation date of a final rule may 
continue to be used for the remainder of the service life of those 
CMVs. Under the proposal, motor carriers that have demonstrated a 
history of serious noncompliance with the hours-of-service (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, 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 automatic on-board recording devices 
(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 propose changes to the safety fitness standard 
that would require this group of carriers to install, use, and maintain 
EOBRs in order to meet the new standard. Finally, FMCSA would encourage 
industrywide use of EOBRs by providing the following incentives for 
motor carriers to voluntarily use EOBRs in their CMVs: Revising the 
Agency's compliance review procedures to permit examination of a random 
sample of drivers' records of duty status; providing partial relief 
from HOS supporting documents requirements, if certain conditions are 
satisfied; and other potential incentives made possible by the inherent 
safety and driver health benefits of EOBR technology.

DATES: Comments must be received by April 18, 2007.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FMCSA-2004-18940 by any of the following methods:
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic 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.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the Agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking (RIN-2126-AA89). Note that 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 at any time or to 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 is able to search the electronic form of 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 DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.
    Comments received after the comment closing date will be included 
in the docket and the Agency will consider late comments to the extent 
practicable. FMCSA may, however, issue a final rule at any time after 
the close of the comment period.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and 
Roadside Operations Division, Office of Bus and Truck Standards and 
Operations, (202) 366-4009, Federal Motor Carrier Safety 
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: This rulemaking notice is organized as 
follows:

I. Legal Basis for the Rulemaking
II. Background
III. Executive Summary
IV. Discussion of Comments to the ANPRM
    A. Overview of Comments
    B. Key Research Factors
    C. Comments on the Requested Subjects
    1. Synchronization of Recorder to a Vehicle Operating Parameter
    2. Amendment of Records
    3. Duty Status Categories When the CMV Is Not Moving
    4. Ensuring Drivers Are Properly Identified
    5. Reporting and Presentation (Display) Formats
    6. Audit Trail/Event Log
    7. Ability To Interface with Third-Party Software for Compliance 
Verification
    8. Verification of Proper Operation
    9. Testing and Certification Procedures
    10. EOBR Maintenance and Repair
    11. Development of ``Basic'' EOBRs To Promote Increased Carrier 
Acceptance
    12. Definitions--Basic Requirements
    13. Potential Benefits and Costs
    14. Incentives To Promote EOBR Use
    15. Miscellaneous Questions
V. Agency Proposal
    A. Technology
    B. Remedies
    C. Incentives
VI. Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures
Regulatory Flexibility Act
Unfunded Mandates Reform Act
Executive Order 13132 (Federalism)
Executive Order 12372 (Intergovernmental Review)
Paperwork Reduction Act
National Environmental Policy Act
E.O. 13211 (Energy Supply, Distribution or Use)
E.O. 12898 (Environmental Justice)
E.O. 13045 (Protection of Children)
E.O. 12988 (Civil Justice Reform)
E.O. 12630 (Taking of Private Property)
National Technology Transfer and Advancment Act
Privacy Impact Assessment

I. Legal Basis for the Rulemaking

    The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, August 
9, 1935,

[[Page 2341]]

now codified at 49 U.S.C. 31502(b)) (the 1935 Act) 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.'' This notice of proposed rulemaking (NPRM) 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. The NPRM would allow motor carriers to 
use EOBRs to document drivers' compliance with the HOS requirements; 
require some noncompliant carriers to install, use, and maintain EOBRs 
for this purpose; and update 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 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 the 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 would enable motor carriers to track 
their drivers' on-duty driving hours accurately, thus preventing 
regulatory violations or excessive driver fatigue, and to schedule 
vehicle and driver operations more efficiently. Driver compliance with 
the HOS rules helps ensure that ``the physical condition of [commercial 
motor vehicle drivers] 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, and thus improve driver safety and 
welfare, FMCSA proposes to require EOBR use by motor carriers with the 
most serious HOS compliance deficiencies (``pattern violations''), as 
described elsewhere in this NPRM. The Agency considered whether this 
proposal would impact driver health under 49 U.S.C. 31136(a)(3) and 
(a)(4). Since the proposal could increase compliance with the HOS 
regulations, including driving and off-duty time, it would not have a 
deleterious effect on the physical condition of drivers. (See the 
discussion regarding health impacts at section 13.3.) The requirements 
in 49 U.S.C. 31136(a)(1) concerning safe motor vehicle maintenance, 
equipment, and loading are not germane to this proposed rule, as EOBRs 
influence driver operational safety rather than vehicular and 
mechanical safety. Consequently, the Agency has not explicitly assessed 
the proposed rule against that requirement. However, to the limited 
extent 49 U.S.C. 31136(a)(1) pertains specifically to driver safety, 
the Agency has taken this statutory requirement into account throughout 
the proposal.
    In addition, section 408 of the ICC Termination Act of 1995 (Pub. 
L. 104-88, 109 Stat. 803, at 958) (ICCTA) required 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 * * *) no later than March 1, 1996.'' The original ANPRM under 
section 408 of ICCTA 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). As discussed further later in this preamble, 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, 
at 22488, Apr. 28, 2003).
    Section 113(a) of the Hazardous Materials Transportation 
Authorization Act of 1994 (Pub. L. 103-311, August 26, 1994, 108 Stat. 
1673, at 1676) (HMTAA) requires the Secretary to prescribe regulations 
to improve--(A) compliance by commercial motor vehicle drivers and 
motor carriers with hours-of-service requirements; and (B) the 
effectiveness and efficiency of Federal and State enforcement officers 
reviewing such compliance. HMTAA section 113(b) states that such 
regulations must allow for a motor carrier's use of a ``written or 
electronic document[s] 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 EOBR proposals set forth 
performance standards, incentives measures, and remedial requirements 
for use of devices that generate such electronic documents and address 
the HMTAA mandate.
    Section 9104 of the Truck and Bus Safety and Regulatory Reform Act 
(Pub. L. 100-690, November 18, 1988, 102 Stat. 4181, at 4529) 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 hours of service regulations,'' and 
requires the Agency to ensure that 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) (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))
    Based on the statutory framework reviewed previously, FMCSA thus 
has statutory authority to adopt an industrywide requirement that all 
motor carriers subject to HOS requirements under 49 CFR Part 395 
install and use EOBR-based systems. The Agency elects not to exercise 
the full extent of its authority at this time, however, and instead 
proposes 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. In this NPRM, the 
Agency proposes criteria for identifying carriers with patterns of HOS 
violations. We also propose changes to the safety fitness standard that 
would require this group of carriers to install, use, and maintain 
EOBRs in order to meet the new standard.
    The determination of a carrier's safety fitness is well within the 
Secretary's authority. Section 215 of the 1984 Act

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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)) That procedure must include ``[s]pecific 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, August 10, 
2005, 119 Stat. 1144) (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 prohibit from operating in interstate commerce and 
intrastate operations affecting interstate commerce owners or operators 
of CMVs that FMCSA has determined do not meet the safety fitness 
requirement to operate in interstate commerce, until the Secretary 
determines that such owner or operator is fit.

II. Background

    The Federal HOS regulations (49 CFR Part 395) limit the number of 
hours a commercial motor vehicle driver may drive and be on duty each 
day, and during each 7- or 8-day period. The rules are needed to 
prevent commercial vehicle operators from driving for long periods 
without opportunities to obtain adequate sleep. Sufficient sleep is 
necessary to ensure that a driver is alert behind the wheel and able to 
respond appropriately to changes in the driving environment. Under 
Sec.  395.8, all motor carriers and drivers (except private motor 
carriers of passengers [non-business]) must keep records to track on-
duty and off-duty time. FMCSA and State agencies use these records to 
carry out safety oversight activities.
    As FMCSA discussed in its September 2004 ANPRM on EOBRs (69 FR 
53386, Sept. 1, 2004), the methods of recording and documenting HOS 
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. This requirement was later revised to add 
the familiar graph-grid recording format to the driver's log, which 
became known as ``Driver's Record of Duty Status (RODS).''
    In the mid-1980s, motor carriers began to look to automated methods 
of recording drivers' duty status as a way of saving drivers time and 
improving the efficiency of their compliance-assurance procedures. On 
April 17, 1985 (50 FR 15269), the Federal Highway Administration 
(FHWA), the predecessor Agency to FMCSA within the U.S. Department of 
Transportation (DOT), granted a waiver to Frito-Lay, Inc. to allow it 
to use on-board computers rather than requiring its drivers to complete 
handwritten RODS (the driver logbook, or ``logs''). Nine other motor 
carriers were subsequently granted waivers.
    In 1986, the Insurance Institute for Highway Safety (IIHS) 
petitioned FHWA to require the installation and use of automatic on-
board recordkeeping systems. Although the petition was denied, FHWA 
determined that regulations were needed to allow motor carriers to use 
AOBRDs without having to seek waivers. After providing the public with 
notice and opportunity to comment, FHWA issued a final rule on 
September 30, 1988 (53 FR 38666), which revised part 395 of the FMCSRs 
to allow, but not require, motor carriers to equip CMVs with AOBRDs 
instead of requiring drivers to complete handwritten RODS (49 CFR 
395.15). An AOBRD was defined under Sec.  395.2 as:

    * * an electric, electronic, electromechanical, or mechanical 
device capable of recording driver's 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.

    Performance requirements for AOBRDs are straightforward. The AOBRD 
and its support systems must be certified by the manufacturer as 
evidence that they ``have been sufficiently tested to meet the 
requirements of Sec.  395.15'' and Appendix A to Part 395 ``under the 
conditions in which they would be used.'' 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 resistant to tampering ``to the maximum extent 
practicable.'' The AOBRD must provide a visual 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 HOS files in a separate location.
    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. Today's technologies allow for real-time transmission 
of a vehicle's location and other operational information. FMCSA calls 
these current-generation recording devices EOBRs. By exploiting the 
power 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 HOS monitoring that build upon the time- and location-
tracking functions included in the providers' hardware and software 
products. Because of these developments in technology and 
communications, the current, narrowly crafted on-board recorder 
regulations require revision.
    On August 3, 1995, the IIHS, Advocates for Highway and Auto Safety 
(Advocates), and several other highway safety and advocacy 
organizations petitioned FHWA to require on-board recorders in CMVs. 
The petitioners believed that mandated use of these devices would 
improve HOS compliance, thereby reducing the number of fatigued drivers 
and fatigue-related crashes. Subsequently, FMCSA included in its May 2, 
2000, NPRM (65 FR 25540) on HOS a proposal to require EOBRs on 
commercial motor vehicles used in long-haul and regional operations. In 
its report ``Top Ten Management Issues'' (Report Number PT-2001-017, 
January 18, 2001) the DOT Office of Inspector General summarized the 
NPRM regarding EOBR use as follows:

    Driver HOS violations and falsified driver logs continue to pose 
significant safety

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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 HOS requirements has 
significant safety value. FMCSA's [May 2, 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.

    When FMCSA published its final HOS rule in April 2003, however, the 
proposal for mandatory use of EOBRs for CMVs used in long-haul and 
regional operations was withdrawn (68 FR 22456, Apr. 28, 2003). FMCSA 
concluded there were insufficient economic and safety data, coupled 
with a lack of support from the transportation community at large, to 
justify an EOBR requirement at that time. The Agency 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 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 
mandated EOBR use 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 the 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 HOS compliance.
    On July 16, 2004, the United States Court of Appeals for the 
District of Columbia Circuit vacated the 2003 final rule, for reasons 
unrelated to EOBRs. See Public Citizen, et al. v. FMCSA, 374 F.3d 1209 
(D.C. Cir. 2004). In dicta, however, the court stated that section 408 
of the ICCTA ``required the Agency, at a minimum, to collect and 
analyze data on the costs and benefits of requiring EOBRs.'' (Id. at 
1221)
    On September 1, 2004, FMCSA published an ANPRM requesting comments 
on a wide range of issues related to the design, use, applicability, 
costs, and benefits of EOBRs (69 FR 53386). FMCSA also conducted 
research into the current use, design, and costs of EOBRs and other 
communications systems being deployed by trucking companies, to provide 
additional information on which to base an approach to incorporating 
EOBR requirements in the FMCSRs. This proposed rule is based, 
therefore, both on the comments received to the ANPRM and on 
independent research the Agency conducted. The four research studies 
cited in the ANPRM are available in the docket at entries 2, 3, 6, and 
7. FMCSA sponsored three additional studies: ``Recommendations 
Regarding the Use of Electronic On-Board Recorders (EOBRs) for 
Reporting Hours of Service (HOS),'' prepared by staff of the John A. 
Volpe National Transportation Systems Center, U.S. Department of 
Transportation Research and Innovative Technology Administration, 
Cambridge, Massachusetts (``Volpe Center Study''); ``Technical Review 
and Assessment: Recommendations Regarding the Use of Electronic On-
Board Recorders (EOBRs) for Reporting Hours of Service (HOS),'' 
prepared by Dr. Kate A. Remley, Electromagnetics Division, National 
Institute of Standards and Technology, Boulder, Colorado; and the 2005 
update of ``On-Board Recorders: Literature and Technology Review,'' 
prepared by Cambridge Systematics (Cambridge, Massachusetts). These 
studies are also in the docket.
    Three of FMCSA's sister agencies within DOT-FHWA, the National 
Highway Traffic Safety Administration (NHTSA), and the Federal Railroad 
Administration--conducted a peer review of the Volpe Center Study in 
accordance with Office of Management and Budget peer review 
requirements. The reviewers evaluated the research with respect to 
scientific and technical merit, adequacy, and overall quality. A 
summary report of the peer review panel's evaluation and FMCSA's 
response to the evaluation are available in the Agency's EOBR Peer 
Review docket (FMCSA-2006-25548) of the DOT Docket Management System.

III. Executive Summary

    FMCSA proposes a comprehensive rule intended to improve CMV safety, 
increase use of EOBRs within the motor carrier industry, and to improve 
HOS compliance. The approach has three components: (1) A new 
performance-oriented standard for EOBR technology; (2) use of EOBRs to 
remediate regulatory noncompliance; and (3) incentives to promote EOBR 
use. FMCSA believes this approach strikes an appropriate balance 
between promoting highway safety and minimizing cost and operational 
burdens on motor carriers that demonstrate strong and consistent 
compliance with the HOS regulations.
    EOBR Performance Requirements. In developing the proposed 
requirements for EOBRs, FMCSA focused its attention on seven research 
factors listed in the ANPRM: (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 HOS 
information quickly and easily; (5) Level of protection afforded other 
personal, operational, or proprietary information; (6) Cost; and (7) 
Driver acceptability. FMCSA proposes that the EOBR record basic 
information needed to track duty status, including the identity of the 
driver, duty status, date and time, location of the CMV, distance 
traveled, and other items that the driver would enter (such as truck 
numbers and shipping document numbers). The EOBR would be required to 
identify the driver, although FMCSA does not propose mandating a 
specific identification method. This approach would allow carriers to 
use existing identification systems or implement newer technologies as 
they become feasible.
    While many of the proposed requirements, such as that for tamper 
resistance, parallel the requirements for AOBRDs, others would extend 
the AOBRD requirements based on our expectation that the EOBR will have 
a high degree of reliability. The EOBR would not need to be integrally 
synchronized to the engine or other vehicle equipment. An EOBR must, 
however, have GPS or other location tracking systems that record 
location of the CMV at least once a minute. EOBRs could still use 
sources internal to the vehicle to record distance traveled and time. 
EOBRs must perform a power-on self-test on demand and must also warn 
the driver if the device ceased to function. Maintenance, 
recalibration, and self-certification requirements would be similar to 
those for AOBRDs.
    EOBRs would need to produce parallel data streams of original and 
modified entries to provide an audit trail for data. FMCSA proposes 
several options for information transfer and display; EOBRs could 
produce the driver's HOS chart in a graph-grid

[[Page 2344]]

format in either electronic or printed form. Data transfer could be 
either hardwired or wireless.
    EOBR Use Requirements. FMCSA is proposing to require EOBR use only 
for those carriers found to have HOS violation rates of 10 percent or 
more of the records reviewed during each of two compliance reviews 
(CRs), when the two reviews are conducted within a 2-year period. These 
carriers would be issued a remedial directive requiring that they 
install EOBRs in all of their CMVs and use the devices for HOS 
recordkeeping for a period of 2 years. This approach focuses on 
carriers with a history of serious HOS violations.
    EOBR Incentives. FMCSA would encourage all motor carriers to 
install and use EOBRs. Some carriers are reluctant to take this step, 
out of concerns that EOBRs' accuracy and the accessibility of the 
electronic records they generate would cause safety investigators to 
examine all of the carrier's HOS records and make minor violations 
easier to identify. We believe these concerns are warranted. To avoid 
putting EOBR-using carriers at a disadvantage during CRs, and to 
provide an incentive for EOBR use, under this proposed rule FMCSA would 
evaluate HOS compliance differently during CRs of carriers using EOBRs 
voluntarily than during CRs of other carriers. If a carrier voluntarily 
using EOBRs is found to have HOS violations in 10 percent or more of 
the records reviewed in the initial analysis, which focuses on drivers 
expected to have compliance problems,\1\ FMCSA would conduct a second 
review, of a random sample made up of records of duty status for the 
carrier's other drivers, and use the results of the second sample in 
determining the carrier's safety rating. FMCSA would assess civil 
penalties on the carrier in the Notice of Claim phase for all HOS 
violations discovered, regardless of the safety rating assigned. (If 
the initial, focused sample did not disclose a 10 percent or greater 
violation rate, then under current regulations the violations found 
would not affect the carrier's safety rating in any case.) We believe 
this approach would remove a disincentive to EOBR use while maintaining 
the Agency's focus on safety. This incentive would not be available to 
motor carriers operating under a remedial directive to install, use, 
and maintain EOBRs.
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    \1\ FMCSA's routine compliance review procedures call for FMCSA 
or State safety investigators to focus their sample of HOS records 
on the RODS of drivers involved in interstate recordable accidents, 
drivers placed out of service for hours-of-service violations during 
roadside inspections, drivers discovered to have poor driving 
records through Commercial Driver's License Information System 
checks, recently hired drivers, and drivers having a high 
probability of excessive driving.
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    Under this proposed rule, FMCSA also would provide partial relief 
from HOS supporting documents requirements for motor carriers that 
voluntarily use EOBRs, provided certain conditions are satisfied. EOBRs 
meeting the proposed requirements produce regular time and CMV location 
position histories sufficient to verify adequately a driver's on-duty 
driving activities. Motor carriers voluntarily maintaining the time and 
location data produced by such devices would need to maintain only 
those additional supporting documents as are necessary to verify on-
duty not-driving activities and off-duty status.
    FMCSA is also requesting comment on other incentives for EOBR 
adoption. We are interested in identifying other regulatory relief that 
a motor carrier's EOBR use might justify, including relief from 
specific HOS requirements or limitations consistent with the safety and 
driver health benefits of EOBR technology.
    Other Issues. In response to the ANPRM, some carriers and drivers 
expressed a reluctance to use EOBRs because of other uses that could be 
made of the data the devices produce. Drivers objected to the devices 
as an invasion of privacy and as a source of information that could be 
used against them for non-HOS-related issues, such as speeding. 
Carriers were concerned that the data could be used in post-crash 
litigation. Both asked that FMCSA limit access to the data for the 
purpose of HOS compliance-related enforcement.
    This NPRM does not propose to require EOBRs to record engine speed, 
although we are aware that other data could be used to derive that 
information. We recognize the industry's concerns in this area, and are 
not proposing that EOBRs display, or make readily available to 
enforcement officials, information other than what is necessary to 
determine compliance with the HOS regulations.

IV. Discussion of Comments to the ANPRM

A. Overview of Comments

    FMCSA received 307 comments in response to the ANRPM. Nearly half 
(148) were from drivers or driver trainers. There were 35 comments from 
private citizens, not all of whom indicated whether they were drivers. 
FMCSA also received comments from 70 carriers, 35 of which were owner-
operators. Fourteen trucking associations submitted comments, as did 
three passenger carrier associations. Also commenting were six advocacy 
organizations and eight associations representing companies such as 
utilities, ready-mixed concrete suppliers, and solid waste management 
firms. Finally, 15 vendors of EOBRs or similar products, 3 individual 
non-trucking firms, one union, and one law enforcement agency submitted 
comments.
    In addition, 172 of the commenters to FMCSA's May 2, 2000, NPRM on 
hours of service of drivers (65 FR 25540) included comments on the 
issue of an EOBR requirement. Of these commenters, 48--including the 
National Transportation Safety Board (NTSB), advocacy organizations, 8 
carriers, and 34 drivers--supported such a requirement, while 124 were 
opposed. The latter group included construction industry associations 
and carriers, trucking associations, an express carrier, and 88 
drivers.
    The potential imposition of an EOBR requirement drew diverse 
comments. Some motor carriers requested that FMCSA exempt them from any 
EOBR requirement because of the nature of their activities. By 
contrast, other carriers thought any requirement to use EOBRs should be 
applied evenly across the industry to maintain a level playing field. 
The Canadian Trucking Alliance (CTA) stated that it ``has adopted a 
policy position, which has been communicated to Canadian governments at 
both the Federal and provincial levels, that calls for the mandatory 
use of EOBRs for the operators of all commercial vehicles, where a 
commercial driver's license is required to operate the vehicle and a 
logbook must be completed by the driver under the current rules.'' 
Advocacy organizations recommended an across-the-board mandate, viewing 
full compliance with the HOS regulations as vital to roadway safety. 
They believe EOBRs are necessary to improve both motor carriers' 
compliance with the HOS regulations and FMCSA's ability to enforce 
them.
    Many drivers contended that mandating EOBR use would constitute an 
unwarranted (and possibly unconstitutional) invasion of privacy. Some 
expressed concerns about trucking companies using EOBRs to maximize 
driving time under the HOS regulations at the expense of driver health 
and safety. The Truckload Carriers Association (TCA) cited protections 
afforded to consumer credit reports by the Fair Credit Reporting Act 
and the protections of medical information required by the Health 
Insurance Portability and Accountability Act of 1996.

[[Page 2345]]

    Motor carriers and trucking industry associations also expressed 
concerns with a potential mandate. Many motor carriers, especially 
smaller companies, echoed drivers' concerns regarding the potential 
financial burden of installing and maintaining EOBRs. On the other 
hand, several medium and large carriers noted they currently use 
vehicle tracking and wireless communication systems. They asked FMCSA 
to consider those systems as equivalent to EOBRs, similar to the 
exemption granted to Werner Enterprises (Werner) (69 FR 56474, Sept. 
21, 2004) to allow use of a system based upon global positioning system 
(GPS) technology. Motor carriers using these and similar systems 
asserted that the costs of installing and maintaining EOBRs would be 
counterbalanced by savings from operating efficiencies and reduced 
paperwork.
    Drivers generally expressed concerns about the EOBRs. They objected 
to the potential purchase and maintenance costs, and questioned the 
potential for improved accuracy of EOBR-generated RODS over paper RODS, 
because AOBRDs (and EOBRs) cannot automatically distinguish between 
``off-duty'' and ``on-duty not-driving'' status requiring manual input 
from the driver. Other commenters questioned the prospect of potential 
cost savings from automated recordkeeping, the potential for improving 
motor carrier HOS compliance and FMCSA's oversight activities, and the 
relationship between HOS compliance and highway crashes. Both drivers 
and motor carriers expressed concern about the potential for ``scope 
creep''--the potential use of EOBRs to collect data unrelated to HOS 
compliance for use in enforcement and litigation actions likewise 
unrelated to HOS.

B. Key Research Factors

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

[[Page 2346]]

Agency Response
    FMCSA agrees with many of the commenters' recommendations, which 
are reflected in several elements of the proposed rule. For example, we 
are proposing a performance standard concerning geographic location 
tracking of the CMV as well as providing for interoperability between 
EOBRs and support systems and compliance-assurance systems, as 
recommended by Advocates and other commenters. We conferred with FHWA 
concerning Advocates' recommendation on interoperability of EOBR data 
and data retrieval. FHWA is not aware of any ``ITS America consensus 
protocols'' in existence. We intend to develop the EOBR performance 
specifications in accordance with ITS America's ``ITS/CVO [Intelligent 
Transportation Systems Commercial Vehicle Operations] Interoperability 
Guiding Principles'' and DOT's Commercial Vehicle Information Systems 
Network [CVISN] Architecture.
    In response to a recommendation by ATA, Schneider, Overnite, and 
others, we are providing a longer than normal public comment period for 
this proposal to allow commenters ample time to develop their responses 
and ensure careful consideration of a cross-section of opinion. The 
Agency believes this deliberate approach, encompassing extensive 
analysis of public comment and the available research, is essential to 
provide the foundation for the ``workable'' rule to which IIHS 
referred.
    In response to Werner Enterprise's comment, we would continue to 
allow Werner to operate under the exemption granted on September 21, 
2004 (69 FR 56474) for vehicles manufactured prior to 2 years after the 
effective date of an EOBR final rule. EOBRs installed in vehicles 
manufactured after that date would be required to comply with 
requirements under an EOBR final rule.

C. Comments on the Requested Subjects

    The Agency also requested comments on 15 subjects, denoted as A 
through O in the ANPRM. The comments to those subjects are addressed 
below.
1. Synchronization of Recorder to a Vehicle Operating Parameter
    Commenters disagreed about whether it is necessary to synchronize 
an EOBR to the CMV to capture data necessary to establish a driver's 
``on-duty, driving'' status. Seven of the 10 equipment and systems 
providers commenting on this topic believe that EOBRs should be 
integrally synchronized to the CMV, either directly to the engine 
control module (ECM) or via the vehicle's electronic network (databus). 
Several stated that their products also support CMV location tracking 
via GPS or other means.
    XATA, an EOBR vendor, asserted that integral synchronization is not 
only more cost-effective than GPS and other technologies but provides 
EOBR manufacturers a standard interface method to ensure accurate 
tracking of vehicle motion and other operational data. Tripmaster 
stated ``electronic engine control modules (ECM) are calibrated during 
the manufacturing process with the proper odometer pulse per mile 
value,'' and that EOBRs connected to the ECM ``are in effect self-
calibrated.'' Tripmaster supported GPS as an alternative distance 
measurement, rather than as the primary source of such measurement. 
PeopleNet supported synchronization with the databus, using ECM data to 
determine travel distance and GPS to confirm location. Qualcomm 
recommended that ``integrally synchronized'' refer to an EOBR system in 
which at least one component is directly connected to the engine of the 
CMV in which it is installed, to enable the EOBR to collect and record 
CMV functions as they occur. Siemens stated its experience in other 
countries is that most falsifications are based on a tampered speed 
signal. It recommended tracking CMV speed through vehicle sensors 
combined with a GPS speed signal. Darby Corporate Solutions believes an 
EOBR should record only vehicle information, not duty status, which it 
contended should be recorded by a separate device. Karta Technologies 
described how its vehicle-tracking product could incorporate an EOBR 
function.
    In contrast, three commenters, LinksPoint, Nextel, and CPS, 
supported a GPS-only system without integral synchronization to the 
CMV. LinksPoint asserted that a combination of driver-reported status 
and GPS-sensed data (such as vehicle motion) would permit an economical 
``semi-automated'' and ``minimally compliant device'' approach to HOS 
recording, and believes current mobile computing technology would allow 
for error checking to improve data accuracy and protect against fraud. 
CPS contended the databus standards are ``out-of-date and rely on input 
from engine sensors that may be inaccurate and need regular 
calibration,'' whereas a GPS-only system would be self-contained, 
stand-alone, and tamper resistant. Nextel advocated integrated GPS 
technology as more accurate and providing near-real-time reporting.
    Motor carriers generally supported retaining a requirement for 
integral synchronization of the EOBR with the CMV. Greyhound, J.B. 
Hunt, Maverick, and Schneider contended that synchronization is 
essential, but also noted EOBRs depend upon human input to record duty 
status accurately. J.B. Hunt supported concurrent use of GPS-enabled 
location tracking and recording. Schneider believes synchronization of 
EOBRs with vehicle electronics ``would require significant filtering to 
avoid data overload and misleading results.'' Schneider suggested FMCSA 
request comments on the new European Union (EU) digital tachograph, 
specifically concerning how it records CMV movement. Schneider stated 
it is concerned FMCSA may be considering use of handheld GPS devices, a 
technology it does not consider appropriate. ATA generally supported 
development of reliable data parameters and standards. However, ATA did 
not support revising the current regulations, as it believes the 
problems cited in the ANPRM pertain to systems that do not comply with 
these rules.
    The Santa Clara Valley Transportation Authority, a public agency 
not subject to the FMCSRs for most of its operations, opposed 
continuing the synchronization requirement. The transportation 
authority uses automated vehicle location and GPS capabilities and has 
incorporated HOS rules into the Santa Clara bus schedules.
    Advocacy organizations supported maintaining the synchronization 
requirement. IIHS asserted the most important capability is the 
accurate recording of driving time, a feature most of today's systems 
provide. Citing FMCSA's past studies, Advocates and Public Citizen 
opposed GPS-only systems and supported a combination of GPS technology 
and recording of on-board vehicle operating parameters.
    Law enforcement interests also supported the notion of an EOBR 
providing a combination of location tracking and vehicle data. The 
Commercial Vehicle Safety Alliance (CVSA) cited a need for redundancy 
to minimize errors and falsification. The California Highway Patrol 
(CHP) thought synchronization among multiple data sources and the EOBR 
is vital to overcome the shortcomings of any one system.
    One commenter stated that an EOBR should record only data, should 
not be programmed to ``make assumptions'' as to duty status, and should 
record GPS data continuously. Another commenter said an EOBR should 
record data from the vehicle databus in real time. The International 
Foodservice Distributor Association opposed any rule requiring

[[Page 2347]]

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

[[Page 2348]]

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

[[Page 2349]]

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

[[Page 2350]]

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

[[Page 2351]]

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

[[Page 2352]]

    PeopleNet and Qualcomm recommended the audit trail be maintained at 
a central office rather than onboard the vehicle.
    In response to the ANPRM question about the system providing a 
gateway for electronic or satellite polling of CMVs in operation, four 
commenters opposed such polling while one carrier inquired what the 
interval between pollings would be.
    Commenters supported continuing the requirement to use a RODS if an 
EOBR is not functioning. One commenter suggested a maximum time limit 
of 14 days.
Agency Response
    FMCSA proposes a general requirement for auditability based upon 
the text of Section F of the ANPRM preamble (69 FR 53386 at 53392, 
Sept. 1, 2004):

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

[[Page 2353]]

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

[[Page 2354]]

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

[[Page 2355]]

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

[[Page 2356]]

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

[[Page 2357]]

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

[[Page 2358]]

    FMCSA considered the potential for EOBRs to reduce or eliminate 
specific types of HOS violations, such as exceeding daily driving time 
limits, exceeding daily duty limits, exceeding weekly duty limits, 
false logs, ``no log'' violations, form and manner log violations, and 
non-current logs. We believe that carriers using EOBRs under an FMCSA 
remedial directive would significantly reduce, and in some cases 
virtually eliminate, several types of HOS violations including driving 
time violations, form and manner violations, and false-log violations. 
Requiring EOBR use by carriers with recurring HOS violations could also 
reduce at least a portion of these carriers' ``no log'' and non-
current-log violations. As discussed in the 2003 and 2005 HOS final 
rules, these reductions in HOS violations would yield safety benefits 
for CMV drivers and the traveling public.
    The Agency sponsored a 2004 study entitled ``Hazardous Materials 
Safety and Security Technology Field Operational Test'' \2\ (HM FOT), 
which examined the effectiveness of technological system solutions to 
enhance safety, security, and operational efficiency. This study found 
that deploying particular types of technology, including EOBR-related 
technology, potentially leads to significant gains in operational 
efficiency by reducing vehicle miles traveled. By eliminating 
unnecessary exposure to CMV highway traffic, this increased operational 
efficiency would improve safety and security.
---------------------------------------------------------------------------

    \2\ Hazardous Materials Safety and Security Technology Field 
Operational Test Final Report, November 11, 2004, http://www.fmcsadot.gov/Safety-Security/hazmat/fot/index.htm.
---------------------------------------------------------------------------

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

[[Page 2359]]

from completing electronic records and that reconstructing RODS from a 
malfunctioning EOBR would take a significant amount of time. Citing a 
1998 UMTRI study (Campbell and Smith, ``Electronic Recorder Study: 
Final Report,'' 1998, page 37; see docket entry FMCSA-2004-18940-7), 
OOIDA stated there is no evidence EOBRs are cost-effective in small 
fleets, and motor carriers would not derive benefits from any savings 
in drivers' time if they pay drivers by the mile. Several other 
commenters offered similar viewpoints.
    Specialized carrier services were especially skeptical about EOBR 
benefits. Petroleum Marketers Association of America stated that 
because its members are already subject to close regulation, EOBRs are 
unlikely to improve their compliance and would offer no additional 
benefits. The North Carolina Forestry Association asserted that RODS 
falsification is ``not the norm by any means,'' and doubted EOBRs would 
improve HOS compliance. The Colorado Ready Mixed Concrete Association 
stated EOBRs would have few benefits for its members because most are 
currently exempt from RODS under the 100-air-mile radius exemption, are 
already using advanced technology, and are committed to HOS compliance.
    U.S. Telecom Association (USTA) said that because telecom drivers 
have no motivation to violate the hours-of-service regulations, EOBRs 
would not benefit this industry sector. USTA noted that utility service 
vehicle drivers are allowed to exceed HOS in situations of a declared 
emergency.
    IBT was skeptical of any productivity benefits from EOBR use. It 
echoed several other commenters in pointing to the need for a driver to 
interact with an EOBR and to resort to paper RODS should the device 
malfunction.
Agency Response
    Several studies have documented the efficiency benefits of EOBR-
related technologies, including time savings from logbook 
recordkeeping. Most notably, the previously mentioned HM FOT discussed 
efficiency benefits in the form of vehicle routing changes. The 1998 
UMTRI Study, also mentioned earlier, noted that ``Electronic HOS 
records obviously offer administrative efficiencies through ease of 
access to and management of these records.'' This study found that 
carrier respondents to a survey cited ``vehicle operating cost 
management'' as the most frequent reason carriers install EOBRs on 
their vehicles. Additionally, numerous commenters to the ANPRM docket 
pointed to benefits from paperwork savings. Therefore, FMCSA believes 
it is plausible to anticipate that carriers would experience cost 
savings from reduced paperwork as well as other gains in operational 
efficiency. The potential savings would of course vary depending on the 
operational characteristics of the carrier and other factors. As 
discussed in the Incentives section below, FMCSA seeks comment on 
whether paperwork savings and operational efficiencies from EOBR use 
also reduce driver fatigue or otherwise mitigate crash risk 
sufficiently to justify affording motor carriers that use EOBRs relief 
from some of the HOS rules.
    In the RIA for this proposal, FMCSA estimated average cost savings 
to affected carriers based on reduced paperwork burden associated with 
EOBR deployment. Our estimates for time savings were conservative. For 
instance, it was assumed that time savings would equal 6.5 minutes 
saved per day per driver, much lower than reported in several studies 
as well as by commenters to the ANPRM. In contrast to OOIDA, the Agency 
believes that, for small carriers whose drivers are paid by the mile, 
this reduced paperwork burden would indirectly benefit the carrier by 
increasing net income. The time savings would have a small tendency to 
increase the supply of drivers at any given rate of pay, or to reduce 
the pay needed to realize any given level of supply. See section 3.3 of 
the RIA for a general discussion.
    We also used conservative estimates for cost savings from paper 
reduction and paper storage. A third conservative assumption 
incorporated into the RIA by the Agency was that EOBR deployment would 
not produce back-office savings, even though some carriers would in 
fact reap such savings. Details of the assumptions and cost savings 
analyses are available in the RIA.
    In response to Public Citizen's comment that the Agency's ANPRM 
failed to analyze the benefits of EOBR use for CMV driver health, it is 
important to note that we did conduct such analysis for the current 
notice. Specifically, FMCSA analyzed the NPRM to ensure its conformance 
with the requirements of 49 U.S.C. 31136(a):

    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.

    Our review revealed little scientific documentation regarding the 
health effects on commercial motor vehicle operators of monitoring 
driving time. Overall, however, since we expect the proposal to 
increase compliance with the HOS regulations, thereby reducing fatigue, 
it would not have a deleterious effect on the physical condition of 
drivers. On the other hand, there is substantial literature regarding 
the health effects of electronic monitoring of workers, as well as on 
the general health effects of operating commercial motor vehicles.
    A review of the available literature suggests that monitoring an 
employee is likely to increase stress levels in certain cases. Those 
cases appear to be limited to people who must work harder to meet 
quantitative performance expectations as a result of being monitored. 
This may not apply to commercial motor vehicle operators, who would be 
monitored to ensure compliance with safety regulations. However, some 
functions of EOBRs may enable fleet managers to monitor the performance 
of their drivers as well as their compliance with hours-of-service 
regulations and could therefore have similar effects to the studies 
described here. A November 2005 report by ICF Consulting, ``Literature 
Review of Non-Safety Health Effects of Electronic On-Board Recorders,'' 
describes the range of available literature. This study, which we 
relied upon to assess the potential direct health effects of monitoring 
drivers' duty status with EOBRs, is available in the docket. As noted 
in Appendix A of the RIA for this NPRM, the literature search found no 
material regarding the relationship between driver health and the use 
of driving time recorders, ``or indeed between driver health and any 
form of monitoring of truck drivers.'' There were, however, a few 
articles on the health effects--particularly stress-induced effects--of 
being electronically monitored at work.
13.4 Training for Drivers, Dispatchers, and Other Motor Carrier 
Employees
    United Natural Foods, an EOBR user, estimated that training 
required to use EOBR and EOBR-generated records was 3 hours per driver 
and 3 days for office staff at $900 per day plus expenses; Maverick, 
which also uses EOBRs, estimated 4 to 5 hours or an average of $150 per 
person. Two motor carriers not currently using EOBRs, Schneider and 
Ralph Meyers Trucking, estimated training costs of $1,500,000 
(Schneider based its estimate on the costs of retraining staff to 
comply with the April

[[Page 2360]]

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

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


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

[[Page 2361]]

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

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

[[Page 2362]]

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

[[Page 2363]]

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

[[Page 2364]]

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

    \3\ FMCSA considered, but is not proposing to adopt, CVSA's 
suggestion that EOBR installation be required as a ``punishment'' 
for part 395 violations. The current civil and criminal penalties 
authorized under 49 U.S.C. 521 for violations of the FMCSRs would 
remain unchanged under the proposed rule.
---------------------------------------------------------------------------

    FMCSA recognizes that there may be other factors that bear 
consideration in determining the potential application of an EOBR 
requirement, such as risks to passengers or to the general public from 
a release of hazardous materials. The Agency requests public comment on 
whether EOBRs should be required of passenger carriers and carriers 
transporting hazardous materials in quantities requiring placarding.
15.2 Other Comments
    IIHS recommended that FMCSA conduct a field operational test of 
EOBR devices and conduct formal surveys to gather data on EOBR 
benefits, costs, and use in HOS enforcement.
    ATA and IIHS asked how FMCSA would determine that EOBRs would 
achieve the intended results. ATA believes the Agency should provide 
evidence that EOBR use will reduce

[[Page 2365]]

fatigue-related crashes and thereby improve truck safety, arguing that 
any correlation between electronic recording and crash reduction is 
merely speculative unless documented. ATA added that a study of motor 
carriers' experiences with automated recording devices could be useful 
in determining whether they contribute to safer driving performance and 
crash prevention.
Agency Response
    In response to IIHS's recommendation for a field operational test 
of EOBRs and surveys to gather data on EOBR benefits, costs, and use in 
HOS enforcement, FMCSA conducted such a survey and published the 
results in 1998 (the UMTRI study, docket entry number 7). The study 
results were limited because of a very low (12 percent) response rate. 
Another field operational test, the FMCSA-sponsored HM FOT discussed 
previously in section 13.2, found that use of EOBR-related technology 
led to potential increases in operational efficiency, which could 
benefit safety indirectly.
    However, as also noted in section 13.2, there is little research 
data linking EOBR deployment directly to safety benefits. A study such 
as ATA suggested, in which data on many potential contributors to 
driving safety would be tracked and analyzed statistically, could 
certainly shed useful light on the relative contributions of factors 
such as CMV driver selection, in-service training, motor carrier 
oversight, and use of HOS recording devices. Such a study would likely 
be extremely challenging to design, given that: (1) Highway CMV-
involved crashes are statistically rare events, so that several years' 
worth of data might be needed before a statistically valid comparison 
could be drawn; (2) motor carriers may make changes to several of these 
areas concurrently; (3) the ``before'' data might not have been 
maintained in a way that allows for direct comparison with the 
``after'' data; and (4) participants' awareness of and involvement in 
an active study could influence their data (i.e., a ``Hawthorne 
effect'').
    As noted previously, in the absence of comprehensive research data 
in this area, the Agency infers from motor carriers' comments to the 
ANPRM, case studies, and anecdotal information that EOBR installation 
and use correlates with increased HOS compliance and reduced driver 
fatigue. This in turn could reduce the incidence of crashes involving 
CMVs.
    The HOS compliance of motor carriers subject to remedial directives 
under the proposed rule could improve even more as a result of EOBR 
installation and use. These are motor carriers that FMCSA has 
determined to have hours-of-service violations in 10 percent or more of 
the records of duty status examined during two or more CRs within a 2-
year period. Such carriers have already demonstrated repeated 
noncompliance with the HOS regulations after being afforded an 
opportunity to improve. The Agency's existing compliance oversight 
processes would already have singled out these carriers for FMCSA's 
attention because violations found during roadside inspections, crash 
involvement, or both, placed them statistically well outside the norm 
at the time of the second CR. The Agency would also have provided 
recommendations to these carriers to guide them toward improving their 
safety performance and regulatory compliance. These carriers would be 
offered a choice: Install a tool--the EOBR--to enable the carrier to 
gather and use more accurate data than are contained in a paper RODS 
and provide more specific information on areas of noncompliance the 
carrier must address, or cease operations. As discussed in detail in 
section 13.2, HOS compliance rate information in the MCMIS, an FMCSA 
case-study analysis of a particular carrier, and analysis by Agency 
enforcement personnel support an inference that compliance with an EOBR 
remedial directive could reduce a carrier's HOS-related violations by 
50 percent.

V. Agency Proposal

    As noted in the Executive Summary and the discussion of public 
comments, FMCSA proposes a comprehensive rule to increase EOBR use 
within the motor carrier industry. The proposed regulation has three 
elements: (1) Performance-oriented standards for EOBR technology; (2) 
the mandatory use of EOBRs by certain motor carriers in a safety 
remediation context; and (3) incentives to promote voluntary EOBR use. 
FMCSA believes this approach strikes an appropriate balance between 
promoting highway safety and minimizing cost and operational burdens on 
motor carriers demonstrating strong and consistent compliance with the 
HOS regulations. We seek public comment on these proposals, discussed 
in what follows.

A. Technology

    FMCSA proposes a new set of performance-based standards for EOBRs 
that reflect the significant advances in recording and communications 
technologies since introduction of the first AOBRDs in 1985.
    In developing this proposal, we also considered findings related to 
the seven key research factors discussed in FMCSA's April 2003 HOS 
final rule and the September 2004 ANPRM on EOBRs. Equally important, as 
noted previously, we considered several additional factors recommended 
by commenters to the ANPRM, including interoperability with other 
commercial motor vehicle intelligent transportation system (ITS) 
applications and the use of standardized file formats. The latter 
criteria are directly related to the factors discussed in the preamble 
of the April 2003 HOS final rule. Following is a discussion of the 
seven research factors with consideration of interoperability and 
standardized file formats.
Factor 1: Ability To Identify the Individual Driver
    FMCSA proposes to correct an apparent gap in the existing AOBRD 
regulation. The current rule includes no explicit requirement for 
driver identification beyond requiring the driver's signature on hard 
copies of the record of duty status (Sec.  395.15(b)(5)). Commenters 
suggested a broad range of identification methods--PINs, removable 
smart cards, assignment of EOBR handsets to individual drivers, and 
biometric systems. FMCSA's proposed approach takes into consideration 
the operational realities of EOBR use, including potential cost or 
operational burdens upon drivers and motor carriers.
    The NPRM includes a proposal for a requirement for driver 
identification, without prescribing a specific method. Motor carriers 
could use either data entry approaches, such as PINs or user ID and 
passwords, or methods such as smart cards that carry identifying 
information or biometrics. This proposed approach would allow motor 
carriers to use identification systems they may already employ in their 
fleet management systems, allow adoption without regulatory change of 
newer and possibly more secure technologies as they become feasible, 
and accommodate future use of credentials currently being developed for 
transportation workers.
    Additionally, the EOBR would be required to display the driver's 
name or employee ID number, if applicable, on all EOBR records 
associated with that driver. This requirement would also apply when the 
driver serves as a co-driver.
Factor 2: Resistance to Tampering
    The broad term ``resistance to tampering'' denotes that the EOBR 
and its support systems cannot be manipulated to produce inaccurate

[[Page 2366]]

information. The intent is to prevent tampering both at the input stage 
(for example, a driver enters a keystroke sequence and presses a reset 
button to erase the last 2 hours of data) and the output stage (for 
example, a motor carrier's central file server uses an algorithm to 
replace all driving time over the 11-hour limit with an ``off-duty'' 
status entry). Thus it encompasses EOBR certification and testing; 
self-diagnosis of failures in hardware, software, and communications; 
and in-service maintenance and calibration.
    Because myriad possible methods exist to meet data integrity and 
auditability requirements, FMCSA proposes a performance-oriented, 
outcome-based regulation. The EOBR and associated support systems must 
be tamper resistant to the maximum extent practicable. They 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.
    A RODS, whether in paper or electronic form, provides a record of 
the sequence of duty status events--date and time they began, date and 
time they ended, and location of each change of duty status. Although 
the 1988 final rule on AOBRDs (53 FR 38666, Sept. 30, 1988) offered one 
approach to generating an electronic record, it was limited by the 
recording and communications technologies that were state-of-the-
practice at that time. Date, time, and driving status information had 
to be obtained from on-vehicle sources. Most of the requirements 
promulgated by the 1988 rule, found under Sec.  395.15, are logical 
candidates for a proposed EOBR regulation. These include requirements 
concerning driver interaction with the AOBRD, tamper resistance, 
ability to record duty status for each driver in a multiple-driver 
operation, and ability to identify sensor failures and edited data.
    However, several of the Sec.  395.15 requirements warrant revision. 
Rather than amending Sec.  395.15, the NPRM proposes a new Sec.  
395.16. The proposed performance specifications in Sec.  395.16 reflect 
the need for and expectation of a high degree of reliability in 21st 
century electronic devices and the data and information they record. 
For example, language concerning the device's ability to ``identify 
sensor failures and edited data when reproduced in printed form'' (as 
currently set forth in Sec.  395.15(i)(7)) would be revised in proposed 
Sec.  395.16(i)(2)-(5) to include electronic as well as paper output 
records. Table 2 compares the similarities and differences between the 
Sec.  395.15 and Sec.  395.16 requirements.

   Table 2.--Comparison of Sec.  Sec.   395.15 and 395.16 Requirements
       [The twelve items listed below are contained in ``Notice of
    interpretation; request for participation in pilot demonstration
 project,'' published by FHWA on April 6, 1998 (63 FR 16697 at 16698).]
------------------------------------------------------------------------
          49 CFR Sec.   395.15                Proposed Sec.   395.16
------------------------------------------------------------------------
1 Sec. 395.15(a)(1) permits use of       The EOBR does not have to be
 ``Automatic on-board recording           integrally synchronized to the
 device'' (OBR) as defined at 49 CFR      engine or other vehicle
 395.2: capable of recording driver's     equipment. The EOBR does have
 duty status accurately and               to use GPS or other location
 automatically * * * must be integrally   tracking systems that record
 synchronized with specific CMV           location at least once a
 functions * * * must record engine       minute; EOBRs could still use
 use, road speed, miles driven (axle      sources internal to the
 revolutions), date and time of day       vehicle to record distance
 (internal clock).                        traveled and time. Requirement
                                          to record road speed is
                                          removed.
2 Sec. 395.15(b)(3) Support systems:     Sec. 395.16(i)(6) Support
 Must provide information about on-       systems: Must provide
 board sensor failures and identify       information about on-board
 edited data.                             sensor failures and identify
                                          edited data. Support systems
                                          must provide a file in the
                                          format specified in Appendix A
                                          of this part. The system must
                                          also be able to produce a copy
                                          of files on portable storage
                                          media (CD-RW, USB 2.0 drive)
                                          upon request of authorized
                                          safety assurance officials.
3 Sec. 395.15(f) Reconstruction of       Same requirement. See Sec.
 records of duty status: Drivers must     395.16(k)(2).
 note any failure of automatic OBRs and
 reconstruct records of duty status
 (RODS) for current day and past 7 days
 * * * must prepare handwritten RODs
 until device is operational.
4 Sec. 395.15(h)(1) Submission of RODS:  Sec. 395.16(m)(1): Driver must
 Driver must submit, electronically or    submit electronically, to the
 by mail, to motor carrier, each RODS     employing motor carrier, each
 within 13 days following completion of   record of the driver's duty
 each RODS.                               status. (2) For motor carriers
                                          not subject to the remedies
                                          provisions of part 385 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 of this chapter, each
                                          record must be submitted
                                          within 3 days of its
                                          completion.
5 Sec. 395.15(h)(2): Driver must review  Same requirement. See Sec.
 and verify all entries are accurate      395.16(m)(4).
 before submission to motor carrier.
6 Sec. 395.15(h)(3): Submission of RODS  Same requirement. See Sec.
 certifies all entries are true and       395.16(m)(5).
 correct.
7 Sec. 395.15(i)(1): Motor carrier must  Sec. 395.16(q)(2): The exterior
 obtain manufacturer's certificate that   faceplate of the EOBR must be
 the design of OBR meets requirements.    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 of this part.
8 Sec. 395.15(i)(2): Duty status may be  Sec. 395.16 (o)(1): The EOBR
 updated only when CMV is at rest,        must permit the driver to
 except when registering time crossing    enter information into the
 State boundary.                          EOBR only when the commercial
                                          motor vehicle is at rest.
9 Sec. 395.15(i)(3): OBR and support     Sec. 395.16(o)(2) The EOBR and
 systems must be, to the maximum extent   associated support systems
 practicable, tamperproof.                must be, to the maximum extent
                                          practicable, tamperproof and
                                          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.
10 Sec. 395.15(i)(4): OBR must warn      Sec. 395.16(o)(6) The EOBR must
 driver visually and/or audibly the       warn the driver via an audible
 device has ceased to function.           and visible signal that the
                                          device has ceased to function.

[[Page 2367]]

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

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

 Accuracy of recording of CMV distance traveled
 Frequency of recording location position

[[Page 2368]]

 Output display requirements
 Data interface requirements for hardwired and wireless 
transfer
 Data file format requirements
 Power-on self-test
 Ambient temperature functional limits
 Vibration and shock requirements
 Operator safety requirements

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

[[Page 2369]]

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

[[Page 2370]]

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

[[Page 2371]]

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

[[Page 2372]]

public comment on the availability of such devices in the near future.
    This NPRM also includes a provision requiring an EOBR to provide 
for the driver's review of each day's record before submitting it to 
the motor carrier. As noted previously, the driver would be allowed at 
that time to make annotations and amendments to the electronic RODS, 
but not to amend driving-status information. The EOBR must be designed 
so that if a driver or any other person annotates a record in the 
device or a support system for the device, the annotation does not 
overwrite the original contents of the record. This would preserve the 
auditability of EOBR records.

B. Remedies

    FMCSA, based on its safety research, believes that motor carriers 
whose drivers routinely exceed HOS limits or falsify their HOS records 
have an increased probability of involvement in fatigue-related crashes 
and therefore present a disproportionately high risk to highway safety. 
Based on the Agency's analysis of its Motor Carrier Management 
Information System (MCMIS) data from CRs conducted since 1995 on motor 
carriers operating in interstate commerce, carriers to which a remedial 
directive would apply under this proposal have crash rates that are 87 
percent higher than average.
    FMCSA selects motor carriers to undergo CRs based in part on data 
generated during roadside inspections. FMCSA and enforcement personnel 
in States receiving Motor Carrier Safety Assistance Program funds under 
49 U.S.C. 31102 enforce motor carrier HOS rules through roadside 
inspections and CRs. Unlike CRs, which usually are conducted at a 
carrier's principal place of business, roadside inspections are 
performed at a fixed or mobile roadside facility. Inspectors may 
perform any of six categories, or levels, of inspection. Level I, II, 
and III inspections include examination of the driver's HOS compliance, 
commercial driver's license, medical certification, and hazardous 
materials (HM) requirements. Level I and II inspections include 
additional factors such as examination of parts and accessories 
necessary for safe operation, motor carrier operating authority and 
financial responsibility, and applicable HM inspection items. These 
roadside inspections are intended to assess the compliance of a 
company's motor vehicles and drivers with FMCSA safety, economic, and 
hazardous materials regulations. Where certain serious violations are 
discovered, the driver or vehicle may be placed out of service.
    In prioritizing among carriers for CRs, FMCSA investigators 
consider a number of factors, including whether the carrier has crash 
involvement, the carrier's vehicle and driver out-of-service rates, 
Safety Status (SafeStat) information system results, the date and 
result of the previous CR, non-frivolous complaints the Agency has 
received concerning the carrier, and whether the carrier is seeking an 
upgrade to its existing safety rating. During CRs, FMCSA or State 
safety investigators examine in detail the motor carrier's compliance 
with all applicable safety regulations.
    In examining HOS records during CRs, safety investigators look at 
samples of drivers' RODS, checking for violations, accuracy, and 
completeness. It is worthwhile to note that FMCSA's method of selecting 
records during the course of a CR has withstood a judicial challenge. 
American Trucking Ass'ns v. Department of Transportation, 166 F. 3d 374 
(D.C. Cir. 1999). In its decision, the court recognized the distinctive 
character of HOS regulations and held that the Agency had acted 
rationally in assigning two points within its Safety Fitness Rating 
Methodology (SFRM) scheme--a double weighting--for a pattern of HOS 
violations. The court stressed the importance of controlling driver 
fatigue and the fact that the HOS regulations are the only ones dealing 
with driver fatigue. These same patterns of HOS violations are the 
focus of the EOBR remedial directives proposed in this NPRM.
    During that portion of the CR involving HOS records review, safety 
investigators use uniform sampling standards including the number of 
drivers to be reviewed, the minimum number of RODS to be checked, and 
other factors designed to focus the investigation on areas where there 
has been probable noncompliance. The number of drivers whose RODS are 
checked varies depending on the size of the carrier (e.g., 0-5 drivers, 
all drivers' logs; 6-10 drivers, 5 drivers' logs; 16-50 drivers, 7 
drivers' logs; etc.). The minimum number of RODS reviewed for part 395 
violations also depends on the carrier's driver population (e.g., 1-5 
drivers, 30 x number of drivers; 6-15 drivers,150 RODS reviewed; 6-15 
drivers, 210 RODS reviewed). Investigators generally look at RODS for 
the 6-month period prior to the CR.
    The investigator prepares a CR report for the motor carrier 
documenting the sample size used, the number of records reviewed, and 
the number of violations discovered under part 395. If the violation 
rate for any ``critical'' part 395 regulation (see 49 CFR Part 385 App. 
B Sec.  VII) is equal to or greater than 10 percent, this pattern of 
noncompliance will potentially affect the carrier's safety rating.
    Traditionally, the Agency has relied on two of its regulatory 
powers to deter HOS violations and obtain motor carrier compliance: (i) 
The issuance of civil penalties under 49 U.S.C. 521(b) followed by 
enforcement proceedings under 49 CFR Part 386; and (ii) the issuance of 
proposed or final ``unsatisfactory'' or ``conditional'' safety ratings 
under 49 CFR Part 385. Motor carrier records examined during Agency 
CRs, however, indicate that some motor carriers routinely violate the 
HOS regulations despite the Agency's use of these enforcement and 
compliance tools. Incidents of log falsification continue to be a 
significant concern, and civil penalties in particular have come to be 
viewed by some carriers--particularly those with significant and 
repeated HOS violations--less as a deterrent than simply as a cost of 
doing business. FMCSA therefore concludes that additional regulatory 
measures are needed to improve HOS compliance of certain motor 
carriers.\4\
---------------------------------------------------------------------------

    \4\ In addition to drawing upon the expertise of FMCSA 
enforcement and compliance personnel, the Agency solicited and 
received input from State enforcement officials regarding mandatory 
EOBR installation for carriers with poor HOS compliance. 
Representatives from the Nebraska and Washington State Patrols and 
the Connecticut Department of Motor Vehicles served as members of 
the Agency's EOBR rulemaking team.
---------------------------------------------------------------------------

Proposed Trigger for Remedial Directives
    FMCSA proposes that the trigger for an EOBR notice of remedial 
directive and proposed unfitness determination be the ``final 
determination'' of one or more pattern violations of any Appendix C 
regulation, followed by the discovery of one or more pattern violations 
of any Appendix C regulation during a CR completed in the 2-year period 
subsequent to the closing date of the CR that resulted in the first 
final determination. A ``pattern violation,'' for purposes of the 
remedial directive, is defined with respect to Appendix C regulations 
as a violation rate equal to or greater than 10 percent of the records 
reviewed. For example, 25 violations out of 100 records reviewed would 
represent a 25 percent violation rate and therefore constitute a 
pattern violation.
    If the motor carrier failed to install and use the EOBRs, it would 
be prohibited from operating in interstate commerce and intrastate 
operations affecting interstate commerce. Further, if the motor carrier 
were a for-hire carrier, it would have its registration revoked.

[[Page 2373]]

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

[[Page 2374]]

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

[[Page 2375]]

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

    This NPRM would amend the safety fitness standard at 49 CFR 385.5 
and make necessary modifications to the safety fitness determination 
procedures.\8\ The amended fitness standard would provide an additional 
requirement that CMV owners and operators must meet, independent of 
their achieving a ``satisfactory'' or ``conditional'' safety rating, in 
order to demonstrate safety fitness. The Agency's three-part safety 
rating scheme, as set

[[Page 2376]]

forth in the SFRM, would remain unchanged.
---------------------------------------------------------------------------

    \8\ Current regulations contemplate such revisions to the 
fitness determinations, and the SFRM ``has the capability to 
incorporate regulatory changes as they occur.'' Part 385 App. B VI 
(a).
---------------------------------------------------------------------------

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

[[Page 2377]]

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 would take 
into account in conditionally rescinding a proposed unfitness 
determination under subpart F would be the carrier's installation of 
Sec.  395.16-compliant EOBRs and satisfaction of the other conditions 
of the remedial directive. The Agency may, nevertheless, consider a 
carrier's installation and use of EOBRs as ``relevant information'' 
that could 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 would have no effect, however, on an 
otherwise applicable NPRDA, remedial directive, or proposed unfitness 
determination. A safety rating upgraded to ``conditional'' would be 
necessary, but not sufficient, to meet the safety fitness standard in 
proposed Sec.  385.5.
Continuing EOBR Use, Maintenance, and Documentation Requirements
    Motor carriers would have up to 60 days (45 days for hazmat and 
passenger carriers) following issuance of the notice of remedial 
directive to install EOBRs compliant with Sec.  395.16. Once a motor 
carrier had installed the devices, the carrier would be required to 
maintain the devices in good working order, to document its drivers' 
use of the devices for recording hours of service, and to review the 
EOBR records of its drivers for HOS compliance. This documentation 
requirement would be satisfied by the carrier's ability to present, 
upon demand, electronic RODS in the format prescribed in proposed new 
Appendix A to Part 395. If, following receipt of an EOBR remedial 
directive, a carrier were discovered to be operating without a 
functioning Sec.  395.16-compliant device in one or more of its CMVs, 
the carrier would be subject to an immediate out-of-service order until 
it installed the devices.
Example Remedial Directives Scenarios
    FMCSA offers the following four scenarios as examples of how the 
proposed remedial directive procedures would operate:
Scenario 1
    During a 2007 CR on a motor carrier of non-hazmat property (not a 
hazmat or passenger carrier) \10\ an FMCSA safety investigator finds 25 
out of 150 logbooks examined reflect a violation of Sec.  395.3(a)(2) 
(requiring or permitting driving after the end of the 14th hour after 
coming on duty), i.e., a pattern violation of an Appendix C regulation. 
FMCSA issues an NPRDA warning the carrier that it will be subject to an 
EOBR remedial directive if another CR within 2 years again finds a 
pattern violation of any Appendix C regulation. The motor carrier does 
not challenge the issuance of the NPRDA. A subsequent CR of the carrier 
in 2008 discloses a 14 percent violation rate for Sec.  395.8(e) (false 
logs), another pattern violation of an Appendix C regulation. The 
carrier is issued a notice of remedial directive to install EOBRs 
within 60 days and provide proof of installation. Simultaneously, the 
carrier is issued a proposed unfitness determination. The carrier fails 
or refuses to install the device(s), or fails to provide proof, and is 
ordered to cease interstate operations, and intrastate operations 
affecting interstate commerce, on the 61st day after issuance of the 
notice of remedial directive and proposed unfitness determination. 
Moreover, because the carrier is required to be registered under 49 
U.S.C. 13901, its registration is revoked on the 61st day.
---------------------------------------------------------------------------

    \10\ All four scenarios assume the motor carrier is not a 
carrier of passengers or hazardous materials. Thus, 60-day periods, 
rather than 45-days periods, would apply under Sec. Sec.  385.11, 
385.13, 385.15 and 385.17.
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Scenario 2
    As in Scenario 1, a CR in 2007 discloses a pattern violation of an 
Appendix C regulation. Because, under Part 385 Appendix B Sec.  II (h), 
that same HOS violation also constitutes a ``pattern of noncompliance 
with a critical regulation relative to Part 395,'' it is assessed two 
points (and an ``unsatisfactory'' Factor Rating) under the Operational 
Factor of the SFRM, just as it would be under the current rule. The 
carrier thus receives an overall safety rating of ``conditional'' and 
is issued an NPRDA, as in Scenario 1. However, in this scenario the 
carrier requests an administrative review of both the NPRDA, under 
Sec.  385.517, and the ``conditional'' safety rating under Sec.  
385.15. The carrier prevails on its challenge in the administrative 
review under Sec.  385.15 but loses its challenge under Sec.  385.517. 
The Agency changes the carrier's overall safety rating to satisfactory. 
However, the NPRDA has not been rescinded and becomes a final 
determination. In 2008, FMCSA conducts a second CR, which also finds a 
pattern violation of an Appendix C regulation. The Agency issues the 
carrier a notice of remedial directive and proposed unfitness 
determination based upon the prior final determination under Sec.  
385.517.
Scenario 3
    A CR in 2007 finds a 10 percent or greater violation rate for an 
Appendix C regulation (which is also a critical HOS violation), plus 
multiple violations of other FMCSRs, resulting in a proposed overall 
safety rating of ``unsatisfactory.'' As in scenarios 1 and 2, FMCSA 
also issues the carrier an NPRDA. The carrier takes immediate steps to 
improve its safety management practices and within 15 days requests a 
safety rating change under Sec.  385.17. The carrier does not challenge 
the NPRDA, however. A second CR within 60 days of the first finds 
improved regulatory compliance, including no HOS violations, and FMCSA 
upgrades the carrier's safety rating to ``conditional.'' A third CR in 
2008, however, again finds a 10 percent or greater violation rate for 
an Appendix C regulation. The carrier is issued a notice of remedial 
directive, ordering installation of EOBRs within 60 days in all of the 
carrier's CMVs, and a proposed determination of unfitness. The carrier 
installs the devices and provides FMCSA with sufficient proof of 
installation. The proposed determination of unfitness is conditionally 
rescinded, and the carrier continues to operate in interstate (and 
intrastate) commerce.
Scenario 4
    As in Scenario 3, a CR in 2007 discloses a 10 percent or greater 
violation rate of an Appendix C regulation, plus such other FMCSR 
violations that the carrier is assigned a proposed overall safety 
rating of ``unsatisfactory'' under Sec.  385.11. The carrier again is 
issued an NPRDA in accordance with Sec.  385.507(a). The carrier 
immediately initiates safety management improvements and, in accordance 
with Sec.  385.17, within 15 days from the date of the notice of 
proposed safety rating requests a change to its safety rating based on 
corrective action. The Agency begins another CR 43 days after the date 
of the notice of proposed safety rating, which shows improvements in 
non-HOS areas but again discloses a 10 percent or greater violation 
rate for an Appendix C regulation. Based upon the motor carrier's 
improvements in the other safety areas, FMCSA upgrades the overall 
safety rating to ``conditional'' and the carrier continues in 
operation. At the same time, because of the HOS violations discovered 
in the second CR, the Agency issues a notice of remedial directive and 
proposed determination of

[[Page 2378]]

unfitness. The carrier fails to install EOBRs within 60 days following 
the second CR, and it also fails to seek administrative review of the 
remedial directive in accordance with Sec.  385.517. The carrier is 
therefore placed out of service on the 61st day.

C. Incentives

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

[[Page 2379]]

    FMCSA believes this random review incentive for motor carriers 
voluntarily using EOBRs would mitigate industry concerns that currently 
tend to discourage EOBR use. FMCSA believes that, over time, widespread 
use of EOBRs will improve HOS compliance and reduce fatigue-related 
crashes. This incentive, which will foster broader EOBR use within the 
industry, is thus in keeping the Agency's mission of promoting motor 
carrier safety. At the same time, by continuing to require safety 
investigators to perform a focused sample of HOS records as the first 
step in a CR, FMCSA would meet its initial responsibility to detect and 
respond to known violations. The random review incentive would apply 
only to carriers voluntarily installing and using EOBRs, not to 
individual drivers.
    FMCSA emphasizes that the Agency would continue to bring civil 
penalty enforcement cases against both drivers and carriers for HOS 
violations discovered during the initial logbook analysis, even though 
that analysis will not be used for purposes of determining the 
carrier's safety rating. The responsibility for assuring HOS compliance 
lies with both the carrier and the driver, and FMCSA would therefore 
continue to bring enforcement cases against both carriers and drivers 
for violations discovered during the initial focused sample analysis. 
These findings would be entered into the Agency's SafeStat system and 
would increase the probability of additional CRs for the carrier. FMCSA 
believes the adverse financial consequences, the negative SafeStat 
data, and the increased likelihood of undergoing additional compliance 
reviews would continue to give the carrier an incentive to correct any 
HOS problems cited on the CR report.
    FMCSA seeks public comment on this issue. We are particularly 
interested in commenters' views on whether the proposed approach would 
provide motor carriers with incentives to voluntarily install EOBRs.
    2. As an additional incentive to promote the installation and use 
of EOBRs by motor carriers, the Agency is proposing a new 49 CFR 395.11 
to provide partial relief, for carriers that voluntarily install a 
device compliant with Sec.  395.16, from the supporting documents 
requirements under 49 CFR 395.8(k). EOBRs meeting the requirements of 
Sec.  395.16 produce regular time and CMV location position histories 
sufficient to verify adequately a driver's on-duty driving activities. 
Motor carriers voluntarily maintaining the time and location data 
produced by Sec.  395.16-compliant EOBRs would need to maintain only 
such additional supporting documents as are necessary to verify on-duty 
not-driving activities and off-duty status. The proposed Sec.  395.11 
would not provide a blanket exemption from all supporting documents 
requirements because, even for carriers using EOBRs, some additional 
supporting documentation (e.g., driver payroll records, fuel receipts) 
is still necessary to verify on-duty not-driving activities and off-
duty status. The proposed incentive would, however, significantly 
reduce the volume of required supporting documents for those carriers 
voluntarily installing EOBRs. This incentive would not be available to 
motor carriers subject to remedial directives to install, use, and 
maintain EOBRs under part 385 subpart F.
    FMCSA seeks comment on this proposal as well. The Agency issued a 
supplemental notice of proposed rulemaking concerning HOS supporting 
documents on November 3, 2004 (69 FR 63997) and anticipates publication 
of the final rule in the near future. Under that rule, motor carriers 
may, in accordance with the exemption procedures in part 381, seek 
FMCSA approval to meet the Sec.  395.8(k) requirements by using 
electronic systems that incorporate GPS or other electronic location-
referencing and tracking technology. As noted in the section titled 
Incentives To Promote EOBR Use, the Agency will consider public 
comments to today's NPRM in determining whether adjustments to the 
supporting documents exemption procedures may be necessary. FMCSA 
requests public comment on this proposed incentive and the random 
sample incentive discussed above.
    3. The Agency is interested in identifying other incentives under 
which carriers could be relieved of regulatory burdens made unnecessary 
by the direct or indirect safety benefits that EOBR technology 
provides. Such incentives could therefore raise the productivity of 
both carriers and drivers safely and without impairing driver health. 
We therefore solicit comments and suggestions about other possible 
incentives in addition to the two identified. Because of the Agency's 
limited experience with the benefits of EOBR technology, we request any 
evidence demonstrating that voluntary use of EOBRs could mitigate 
safety risks associated with extended driving or on-duty time, such 
that carriers using EOBRs might be afforded added scheduling 
flexibility under the HOS rules. The Agency seeks information, for 
example, on whether the time savings that drivers are likely to achieve 
from EOBR use (see section 13.3 above), or other safety and driver 
health benefits inherent in EOBR technology, would provide a sufficient 
basis for the Agency to allow drivers using the devices to extend their 
14-hour driving window under 49 CFR 395.3(a)(2). Would using an EOBR 
reduce driver fatigue so that relief could be afforded under the 
sleeper berth provisions in 49 CFR 395.1(g)(1)? Likewise, would a motor 
carrier's voluntary use of EOBRs provide sufficient assurance of 
compliance with HOS regulations that FMCSA could safely forgo review of 
particular segments of the carrier's operations during a compliance 
review? We encourage both industry and safety groups to provide 
recommendations that will enable FMCSA to craft a rule that takes full 
advantage of EOBR technology in the safety program.

VI. 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 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 that, although this proposed rule would not 
have an annual effect of $100 million or more, it is a 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 compliance. 
We have therefore conducted a Regulatory Impact Analysis (RIA) of the 
costs and benefits of this NPRM. The

[[Page 2380]]

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

                                        Table 3.--Annualized Net Benefits
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                    Option 3:
                                                                  Option 1: LH    Option 2: LH      recurring
                                                                     and SH           only       noncompliant LH
----------------------------------------------------------------------------------------------------------------
High Cost Estimate.............................................        ($3,690)          ($930)          ($7.53)
Median Cost Estimate...........................................         (2,142)           (355)           (1.66)
Low Cost Estimate..............................................         (1,846)           (264)            0.61
----------------------------------------------------------------------------------------------------------------

In sum, options 1 and 2 show negative net benefits for all three of the 
cost estimates, though the magnitudes of the negative net benefits vary 
with the cost assumptions. For Option 3, cost estimates for the EOBR 
devices determine whether there are net benefits or net costs: Net 
benefits are positive under the low cost estimate (which encompasses 
compliant, yet not integrally synchronized, devices) but negative under 
the high and median cost estimates (which correlate with integrally 
synchronized units).

Regulatory Flexibility Act

    This rulemaking has been drafted in accordance with the Regulatory 
Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. Sec. Sec.  601-612). FMCSA 
conducted an Initial Regulatory Flexibility Act (IRFA) analysis of the 
impacts on small entities to determine whether the proposed rule would 
have a significant economic impact on a substantial number of small 
entities. A brief summary of this Initial Regulatory Flexibility 
Analysis is provided below. The full IRFA is provided in the docket.
    At present, it is unclear whether this proposal would have a 
significant impact on substantial numbers of small entities. The 
proposed requirements would apply only to the relatively small number 
of motor carriers with significant HOS noncompliance--an estimated 
total of between 465 and 930 carriers per year, a majority of which are 
considered small. Although the cost impacts are generally quite small 
as a percentage of typical carrier revenues, they could vary 
substantially across affected carriers, ranging from 0.45 to 0.07 
percent of annual revenues depending on the carrier's revenue per CMV. 
Firms with higher revenues-per-truck would experience a proportionately 
lower cost impact. Further, these carriers would experience 
compensatory time savings, or administrative efficiencies, as a result 
of using EOBR records in place of paper RODS. The level of increased 
administrative efficiencies would vary with the number of CMVs the 
carrier operates.

Unfunded Mandates Reform Act

    This rule would not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$128.1 million or more (as adjusted for inflation) 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.

[[Page 2381]]

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. FMCSA determined that 
this NPRM would affect a currently approved information collection for 
OMB Control Number 2126-0001, titled ``Hours of Service of Drivers 
Regulation.'' OMB approved this information collection on November 3, 
2005, at a revised total of 153,103,292 burden hours, with an 
expiration date of November 30, 2008. 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 
paperwork burden imposed by FMCSA's records of duty status (RODS) 
requirement is set forth at 49 CFR 395.8.
    FMCSA estimated that the remedial provisions of this NPRM, 
requiring the installation, use, and maintenance of EOBRs by motor 
carriers with a pattern of severe HOS violations, would affect 
approximately 930 motor carriers with about 17,500 drivers annually. 
These drivers' total annual burden hours for meeting the RODS 
requirement at Sec.  395.8 is estimated at 455,000 (17,500 CMV drivers 
x 26 hours per year to complete the RODS). The time required by EOBR-
using motor carriers to review the RODS would likewise be reduced 
compared with that required for review of paper RODS. The total burden 
hours for carriers to review the RODS for 17,500 EOBR-using drivers was 
estimated at 210,000 annual burden hours. The combined reduction in 
burden hours for carrier and driver is 665,000 burden hours.
    Under the 2005 HOS final rule, the total annual burden hours for 
carriers and drivers using traditional paper RODS is 104,754,884 burden 
hours for drivers' completion of RODS and 48,348,408 burden hours for 
carriers to review the RODS, for a combined total of 153,103,292 burden 
hours. Subtracting from that total the 665,000-burden-hour reduction 
achieved by carriers using EOBRs under this proposed rule, we derived 
an estimated total of 152,438,292 burden hours for compliance with the 
RODS requirement by all motor carriers--both those operating under the 
remedial provisions of this NPRM and those using traditional paper 
RODS.
    Note that the above estimates of paperwork burden do not take into 
account potential paperwork savings associated with voluntary use of 
EOBRs by motor carriers. Drivers employed by, and owner-operators 
leased to, such carriers would have a reduced paperwork burden to meet 
the RODS requirement at Sec.  395.8, and the motor carrier's time-and-
cost burden associated with reviewing and maintaining the RODS and 
supporting documents would be similarly reduced. Under proposed Sec.  
395.11, carriers maintaining time and location data produced by Sec.  
395.16-compliant EOBRs need only maintain such supporting documents as 
are necessary to verify on-duty not-driving and off-duty status to 
fully meet the supporting documents requirements in Sec.  395.8(k). 
Depending on the number of CMVs these carriers operate, their paperwork 
savings could be substantial. However, because it is difficult to 
quantify the number of motor carriers that would voluntarily use EOBRs, 
the Agency did not estimate these potential paperwork savings.
    A supporting statement reflecting this assessment will be submitted 
to OMB together with this NPRM.

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 a draft 
Environmental Assessment (EA) to review the potential impacts of this 
proposed rulemaking. The draft EA findings are summarized below. The 
full EA is in the docket.
    Implementation of this proposed action would alter to some extent 
the operation of CMVs. However, the proposal, if implemented, would 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) 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 would 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 
would cause a modest overall increase in engine emissions by virtue of 
coming into compliance with the HOS regulations. Because the number of 
trucks likely to be required to install EOBRs is relatively small 
(7,600 out of 1.51 million total CMVs), FMCSA determined that the 
increase in air toxics would be negligible. Moreover, because drivers 
for carriers brought into HOS compliance would experience less fatigue 
and be less likely to have fatigue-related crashes, there would be a 
counterbalancing increase in public safety.
    FMCSA concludes that the rule changes would have a negligible 
impact on the environment, and therefore would not require an 
environmental impact statement. The provisions under the proposed 
action do not, individually or collectively, pose any significant 
environmental impact.

E.O. 13211 (Energy Supply, Distribution or Use)

    FMCSA determined that the proposed rule would not significantly 
affect energy supply, distribution, or use. No Statement of Energy 
Effects is therefore required.

E.O. 12898 (Environmental Justice)

    FMCSA evaluated the environmental effects of this proposed action 
and alternatives in accordance with Executive Order 12898 and 
determined that there are no environmental justice issues associated 
with the proposal. The proposed rule would have notable consequences 
only for trucking firms that have repeatedly demonstrated noncompliance 
with the HOS regulations. It would not create any adverse health or 
environmental effects.

E.O. 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. As discussed previously, this proposed rule is not 
economically significant. Therefore, no analysis of the impacts on 
children is required.

E.O. 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,

[[Page 2382]]

eliminate ambiguity, and reduce burden.

E.O. 12630 (Taking of Private Property)

    This rule would not effect a taking of private property or 
otherwise have 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 Document 
Information Systems--Coded Character Sets--7-Bit American National 
Standard Code for Information Interchange (7-Bit ASCII) (ANSI document 
 ANSI INCITS 4-1986 (R2002)) published by ANSI (American 
National Standards Institute). In another example, the Agency would 
reference the 802.11 family of standards 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 desires to include 
in its proposed performance-based regulation, 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.

Privacy Impact Assessment

    Section 522(a)(5) of the FY 2005 Consolidated Appropriations Act, 
Title V, General Provisions (Pub. L. 108-447, 118 Stat. 2809 at 3268) 
requires Federal agencies to conduct a privacy impact assessment (PIA) 
of proposed rules that will affect the privacy of individuals. The 
Agency conducted a PIA for this NPRM. We determined that the same 
personally identifiable information for CMV drivers currently collected 
as part of the RODS and supporting documents requirements would 
continue to be collected under this rulemaking.
    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 biomonitors) as too invasive of 
personal privacy.
    All CMV drivers subject to 49 CFR Part 395 must have their hours of 
service accounted for to ensure that drivers have adequate 
opportunities for rest. This NPRM would not change the treatment of HOS 
with respect to privacy matters, change which drivers and motor 
carriers are required to comply with the RODS requirement, or change 
the sharing of information. 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 stopped for purposes of conducting roadside 
inspections. Motor carriers would not be required to upload this 
information into any Federal or State information system accessible 
either to the public or to motor carrier safety enforcement agencies. 
This would preserve data security and ensure that EOBR data collection 
does not result in a new or revised Privacy Act System of Records for 
FMCSA. Data accuracy concerning drivers' RODS should improve as a 
result of the proposals to establish new performance standards for 
EOBRs; to allow drivers to make EOBR entries to identify any errors or 
inconsistencies in the data; and to mandate EOBR use by motor carriers 
with a history of serious noncompliance with the HOS rules.
    In summary, the NPRM would neither enlarge the scope of personally 
identifiable information collected nor change the sharing of that 
information.

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, Motor carriers, Reporting and recordkeeping.

49 CFR Part 396

    Highways and roads, Motor carriers, Motor vehicle equipment, Motor 
vehicle safety.
    For the reasons set forth above, FMCSA is proposing to amend 49 CFR 
parts 350, 385, 395, and 396 as follows:

PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM

    1. The authority citation for part 350 continues to read as 
follows:

    Authority: 49 U.S.C. 13902, 31100-31104, 31108, 31136, 31140-
31141, 31161, 31310-31311, 31502; and 49 CFR 1.73.

    2. Amend Sec.  350.201 by revising the introductory text and adding 
paragraph (w) 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 conditions:
* * * * *
    (w) Enforce requirements relating to FMCSA remedial directives 
issued in accordance with 49 CFR Part 385, Subpart F, including 
providing inspection services for verification of electronic on-board 
recorder installation and operation as provided in Sec.  385.511(b).

PART 385--SAFETY FITNESS PROCEDURES

    3. The authority citation for part 385 is revised 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.


[[Page 2383]]


    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.
* * * * *
    5. Amend Sec.  385.3 by adding a definition for safety fitness 
determination in alphabetical order, and by revising the existing 
definition for safety 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 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 FMCSA has not assigned a safety 
rating to the motor carrier.
    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; and
    (b) The motor carrier has complied with all requirements contained 
in any remedial directive issued under subpart F of this part.
    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 of 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.
* * * * *
    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 F 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 F of 
this part, a notice of a proposed or final safety rating will 
constitute the notice of safety fitness determination.
    9. Amend Sec.  385.15 by revising paragraph (a) to read as follows:


Sec.  385.15  Administrative review.

    (a) A motor carrier may request 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).
* * * * *
    10. 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 
potential remedial directive applicability, remedial directive, or 
proposed determination of unfitness issued in accordance with subpart F 
of this part.
    (l) A motor carrier may not request a rescission of a determination 
of unfitness issued under subpart F of this part based on corrective 
action.
    11. 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 ICCMC docket number if applicable.
* * * * *

[[Page 2384]]

    12. 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 F 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 the 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.
* * * * *
    13. Add subpart F to part 385 to read as follows:
Subpart F--Remedial Directives
Sec.
385.501 Purpose and scope.
385.503 Definitions and acronyms.
385.505 Events triggering issuance of remedial directive and 
proposed determination of unfitness.
385.507 Notice of potential remedial directive applicability.
385.509 Issuance of remedial directive.
385.511 Proof of compliance with remedial directive.
385.513 Issuance and conditional rescission of proposed unfitness 
determination.
385.515 Exemption for AOBRD users.
385.517 Administrative review.
385.519 Effect of failure to comply with remedial directive.

Subpart F--Remedial Directives


Sec.  385.501  Purpose and scope.

    (a) This subpart establishes procedures for FMCSA's issuance of 
notices of potential remedial directive applicability, 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 recurring violations 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 notices of proposed remedial 
directive applicability, 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.  385.503  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 F means:
    (1) An adjudication under this subpart upholding a notice of 
potential remedial directive applicability (NPRDA) or remedial 
directive and proposed unfitness determination;
    (2) The expiration of the period for filing a request for 
administrative review of an NPRDA or 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.
    Notice of potential remedial directive applicability (NPRDA) means 
a notice, following a compliance review of a motor carrier, that this 
subpart applies to the motor carrier and that violations or other 
findings during the compliance review may contribute to the future 
issuance of a remedial directive under this subpart. The NPRDA will 
explain the future circumstances that would trigger issuance of a 
remedial directive and will describe generally the compliance review 
findings that prompted issuance of the NPRDA.
    Pattern 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.
    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).


Sec.  385.505  Events triggering issuance of remedial directive and 
proposed determination of unfitness.

    (a) 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 pattern violations of any Appendix C regulation 
or regulations that occur within a 2-year period. 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 pattern violations of any Appendix C regulation and, in 
a subsequent compliance review completed within the 2-year period 
following the closing date of the first review, one or more pattern 
violations of any Appendix C regulation(s) are discovered.
    (b) The two compliance reviews under paragraph (a) of this section 
need not be conducted consecutively for a remedial directive and 
proposed unfitness determination to be issued.


Sec.  385.507  Notice of potential remedial directive applicability.

    (a) Following the first of the two compliance reviews described in 
Sec.  385.505(a), FMCSA will provide the motor carrier a written notice 
of potential remedial directive applicability (NPRDA).
    (b) The NPRDA will contain the following information:
    (1) Notification of the applicability of this subpart.
    (2) Notification that violations discovered during the compliance 
review may cause the future issuance of a remedial directive under this 
subpart.

[[Page 2385]]

    (3) The circumstances under which future violations would trigger 
issuance of a remedial directive.
    (4) A brief statement of the compliance review findings that 
prompted issuance of the NPRDA.
    (5) The manner in which a motor carrier may challenge the issuance 
of an NPRDA in accordance with Sec.  385.517.
    (6) Any other matters as FMCSA may deem appropriate.
    (c) FMCSA will notify the carrier in writing of the rescission of 
an NPRDA.


Sec.  385.509  Issuance of remedial directive.

    (a) Following the close of the second of the two compliance reviews 
described in Sec.  385.505(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 EOBRs compliant with Sec.  395.16 of this chapter 
in all of the motor carrier's CMVs and to provide proof of the 
installation to FMCSA in accordance with Sec.  385.511 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 following 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.


Sec.  385.511  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 
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.  385.519.


Sec.  385.513  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. 
13901, 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.  385.511.
    (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.  385.515  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, or to motor carriers that had been issued 
a waiver allowing the carrier to use devices not fully compliant with 
Sec.  395.15.
    (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 Sec.  395.16-compliant devices.
    (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

[[Page 2386]]

manufactured on or after the date 2 years from the effective date of 
this rule.


Sec.  385.517  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 
an NPRDA under Sec.  385.507 or a notice of remedial directive and 
proposed unfitness determination under Sec.  385.509. 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 NPRDA or 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, 
400 Seventh Street, SW., Washington, DC 20590. The 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.  385.519(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 following the date of the NPRDA under Sec.  
385.507 or the notice of remedial directive and proposed determination 
of unfitness under Sec.  385.509.
    (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 potential remedial directive applicability, 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.
    (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.  385.519  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.  385.511, 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.  385.513 
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.  385.519(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.  385.511, 
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.  385.517(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 CMVs in violation of 
this section will be subject to the penalty provisions listed in 49 
U.S.C. 521(b).
    14. Amend Appendix B by revising introductory paragraphs (b), (c), 
and (d) and section VI Conclusion, 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

[[Page 2387]]

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 F. 
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.
* * * * *
    15. Add Appendix C to read as follows:

Appendix C to Part 385--Regulations Pertaining To Remedial Directives 
in Part 385 Subpart F

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 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

    16. The authority citation for part 395 continues 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.

    17. Section 395.2 is amended to add the following definitions in 
alphabetical order:


Sec.  395.2  Definitions.

* * * * *
    ASCII (American Standard Code for Information Interchange) is a 
character set and a character encoding system based on the Roman 
alphabet as used in modern English and other Western European 
languages. ASCII is commonly used by computers and other communication 
equipment. The specifications for the ASCII standard (the most widely 
used form of which is ANSI X3.4-1986) are described in the document 
Information Systems--Coded Character Sets--7-Bit American National 
Standard Code for Information Interchange (7-Bit ASCII) (ANSI document 
 ANSI INCITS 4-1986 (R2002)), published by the American 
National Standards Institute (ANSI).
* * * * *
    Bluetooth is a short-range wireless data communications standard 
typically used to exchange information between electronic devices such 
as personal digital assistants (PDAs), mobile phones, and portable 
laptop computers.

[[Page 2388]]

The technical specifications for the Bluetooth standard are described 
in the document Bluetooth Specification Version 2.0 + EDR [vol. 0], 
available from the Bluetooth Special Interest Group (SIG).
    CD-RW (Compact Disc--ReWriteable) 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.
* * * * *
    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. The 802.11 standard 
includes three amendments to the original standard, 802.11a, 802.11b, 
and 802.11g. The technical specifications for 802.11a, 802.11b, and 
802.11g are published by the Institute of Electrical and Electronics 
Engineers (IEEE).
    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.
* * * * *
    Integrally synchronized refers to an AOBRD or EOBR that receives 
and records the engine use status for the purpose of deriving on-duty-
driving status from a source or sources internal to the CMV.
* * * * *
    RS-232 is a standard for serial binary data interconnection. The 
technical specifications for the RS-232 standard are described in the 
document Interface Between Data Terminal Equipment and Data Circuit-
Terminating Equipment Employing Serial Binary Data Interchange (ANSI/
TIA-232-F-1997 (R2002)), September 1, 1997, published by the 
Telecommunications Industry Association (TIA).
* * * * *
    USB (Universal Serial Bus) is a serial bus interface standard for 
connecting electronic devices. The technical and physical 
specifications for USB are described in the document Universal Serial 
Bus Revision 2.0 specification, published by the USB Implementers Forum 
(USBIF), an industry standards group of leading companies from the 
computer and electronics industries.
    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.
* * * * *
    XML (Extensible Markup Language) is text format used for including 
information about the conceptual structure of a piece of text. The 
primary purpose of XML is to facilitate the sharing of data across 
different computer systems. The technical specifications for XML are 
described in the document Extensible Markup Language (XML) 1.0 (Third 
Edition), published by the World Wide Web Consortium (W3C).
    18. Amend Sec.  395.8 to revise 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).
* * * * *
    (e) Failure to complete the record of duty activities of this 
section, 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.
* * * * *
    19. Add Sec.  395.11 to read as follows:


Sec.  395.11  Supporting documents for EOBR-created RODS.

    Time and location data produced by an EOBR meeting the requirements 
of Sec.  395.16 are sufficient to verify on-duty driving time. Motor 
carriers maintaining 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 to fully 
meet the requirements of Sec.  395.8(k). This section does not apply to 
motor carriers and owner-operators that have been issued a remedial 
directive to install, use, and maintain EOBRs.
    20. Amend Sec.  395.13 to revise paragraph (b)(2) and to add 
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.  385.511(d) of 
this chapter.
* * * * *
    21. Amend Sec.  395.15 to revise paragraph (a) to read as follows:


Sec.  395.15  Automatic on-board recording devices.

    (a) Applicability. This section applies to automatic on-board 
recording devices (AOBRDs) used to record the driver's hours of service 
as specified by part 395. For commercial motor vehicles manufactured 
prior to [INSERT DATE 2 YEARS AFTER PUBLICATION OF FINAL RULE], 
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.
* * * * *
    22. Add Sec.  395.16 to read as follows:


Sec.  395.16  Electronic on-board recording devices.

    (a) Applicability. This section applies to electronic on-board 
recording devices (EOBRs) used to record the driver's hours of service 
as specified by part 395. For commercial motor vehicles manufactured 
after [INSERT DATE 2 YEARS AFTER PUBLICATION OF FINAL RULE], 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.
    (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 user IDs and passwords, PIN 
numbers, smart cards, or biometrics).
    (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.).

[[Page 2389]]

    (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'', or other identifiable code or 
character.
    (2) ``Sleeper berth,'' or ``SB'' or other identifiable code or 
character, to be used only if sleeper berth is used.
    (3) ``Driving,'' or ``D'' or other identifiable code or character.
    (4) ``On-duty not-driving'' or ``ON'' or other identifiable code or 
character.
    (d) Duty status defaults.
    (1) An EOBR must automatically record driving time.
    (2) When the CMV is stationary for 15 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 reported on the EOBR output record as 
specified under paragraph (f) of this section and displayed at each 
change of duty status.
    (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 must not drift more 
than 2 seconds per day. The absolute deviation from the time base 
coordinated to UTC 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 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) When the CMV is in motion, location and time must be recorded 
at intervals no greater than 1 minute. This recorded information must 
be capable of being made available in an output file format as 
specified in Appendix A of 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 use location codes derived from satellite or 
terrestrial sources, or a combination of these. The location codes must 
correspond, at a minimum, to the Census Bureau 2000 Gazetteer ``County 
Subdivision'' data.
    (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) If the EOBR obtains distance-traveled information from a source 
internal to the CMV, the information must be accurate to the distance 
traveled as measured by the CMV's odometer.
    (4) If the EOBR obtains distance-traveled information from a source 
external to the CMV, the information recorded must be accurate to 
within 1 percent of actual distance traveled over a 24-hour 
period 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 
may do so only immediately prior to the first driving period of the day 
and immediately following the last driving period of the day. The 
driver must electronically confirm his or her intention to make any 
annotations.
    (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 
chart using a graph-grid format in either electronic or printed form in 
the manner described in Sec.  395.8 and a digital file in the format 
described in Appendix A of this part. The chart must show the time and 
sequence of duty status changes including the driver's starting time at 
the beginning of each day.
    (3) This information may be used in conjunction with handwritten or 
printed records of duty status for the previous 7 days.
    (4) The information displayed on the device 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 of 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, other computer-
generated records, or any combination of these. Electronic records must 
be transferable to portable computers used by roadside safety assurance 
officials and must provide files in the format specified in Appendix A 
of this part. The communication information interchange methods must 
comply with the requirements of RS 232, USB 2.0, IEEE 802.11(g), and 
Bluetooth.
    (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 of 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.
    (j) Driver identification. For the driver to log into the EOBR, the 
EOBR must require the driver to enter information (such as user IDs and 
passwords, PIN numbers) 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.

[[Page 2390]]

    (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 computer-generated records, 
or any combination of these.
    (2) If an EOBR fails, the driver must do the following:
    (i) Note the failure of the EOBR.
    (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.
    (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 F 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 F 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 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) Acknowledgement of an advisory message or signal concerning 
HOS limits.
    (11) Override of an automated duty status change to driving if 
using the vehicle for personal conveyance or for yard movement.
    (12) Date and time of crossing a State line (for purposes of fuel-
tax reporting).
    (o) Performance of recorders. A motor carrier that uses EOBRs for 
recording drivers' records of duty status instead of the handwritten 
record must ensure the EOBR meets the following requirements in order 
to address all hours-of-service requirements in effect as of October 
24, 2005:
    (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, to the maximum 
extent practicable, be tamper resistant. The EOBR 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 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 of 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.
    (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 ensure that the EOBR is calibrated, 
maintained, and recalibrated in accordance with the manufacturer's 
specifications; the motor carrier must retain records of these 
activities.
    (2) 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.
    (3) 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.
    (4) The motor carrier must review the EOBR records of its drivers 
for compliance with part 395.
    (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 of 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

[[Page 2391]]

evidence that the device has been tested and certified as meeting the 
performance requirements of Sec.  395.16 and Appendix A of this part.
    23. Add Appendix A to 49 CFR Part 395 to read as follows:

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 Database Concept

    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. 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] TP18JA07.000

    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
           Data element                   definition               Type            Length   Valid values & notes
----------------------------------------------------------------------------------------------------------------
Driver Identification Data:
    Driver First Name.............  First name of the      A...................         35
                                     driver.
    Driver Last Name..............  Last name, family      A...................         35
                                     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 U.S.
                                     DOT regulations.
Co-Driver Data:
    Co-Driver First Name..........  First name of the co-  A...................         35
                                     driver.
    Co-Driver Last Name...........  Last name, family      A...................         35
                                     name or surname of
                                     the co-driver.
    Co-Driver ID..................  Numeric                A...................         40
                                     identification
                                     number assigned to a
                                     driver by the motor
                                     carrier.

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Company Identification Data:
    Carrier USDOT Number..........  USDOT number of the    N...................          8
                                     motor carrier
                                     assigned by FMCSA.
    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...................          8  UTC (universal time)
                                     event occurred.       (Date)..............              recommended.
                                                                                             Format: YYYYMMDD.
    Event Time....................  The time when an       N...................          6  UTC (universal time)
                                     event occurred.       (Time)..............              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....................  Nearest populated      N...................          5  Unique within a FIPS
                                     place from the                                          state code. Lookup
                                     FIPS55 list of codes                                    list derived from
                                     for populated                                           FIPS55.
                                     places. (Census
                                     Bureau 2000
                                     Gazetteer ``County
                                     Subdivision'').
    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
                                     other compliant                                         miles traveled
                                     means such as                                           while driving,
                                     vehicle location                                        etc., can be
                                     system, etc.).                                          computed.
    Event Update Status Code......  A status of an event,  A...................          1  C=Current;
                                     either Current (the                                     H=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...................          8  UTC (universal time)
                                     event record was      (Date)..............              recommended.
                                     last updated or                                         Format: YYYYMMDD.
                                     edited.
    Event Update Time.............  Then time when an      N...................          6  UTC (universal time)
                                     event record was      (Time)..............              recommended.
                                     last updated or                                         Format: HHMMSS
                                     edited.                                                 (hours, 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
                                     recent record update                                    for record update
                                     or edit.                                                or edit.
----------------------------------------------------------------------------------------------------------------


                                      Table 3.--EOBR Diagnostic Event Codes
----------------------------------------------------------------------------------------------------------------
             Code class                       Code             Brief description           Full description
----------------------------------------------------------------------------------------------------------------
General System Diagnostic...........  PWR--ON.............  Power on...............  EOBR initial power-on.
General System Diagnostic...........  PWROFF..............  Power off..............  EOBR power-off.
General System Diagnostic...........  TESTOK..............  test okay..............  EOBR self test successful.
General System Diagnostic...........  SERVIC..............  Service................  EOBR Malfunction (return
                                                                                      unit to factory for
                                                                                      servicing).
General System Diagnostic...........  MEMERR..............  memory error...........  System memory error.
General System Diagnostic...........  LOWVLT..............  Low voltage............  Low system supply voltage.
General System Diagnostic...........  BATLOW..............  battery low............  Internal system battery
                                                                                      backup low.
General System Diagnostic...........  CLKERR..............  clock error............  EOBR system clock error
                                                                                      (clock not set or
                                                                                      defective).
General System Diagnostic...........  BYPASS..............  Bypass.................  EOBR system bypassed (RODS
                                                                                      data not collected).

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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...............  NO--GPS.............  no GPS data............  No GPS sensor information
                                                                                      available.
External Sensor Issue...............  NOLTLN..............  no latitude longitude..  No latitude and longitude
                                                                                      from positioning sensor.
External Sensor Issue...............  NOTSYC..............  no time synchronization  Unable to synchronize with
                                                                                      external time reference
                                                                                      input.
External Sensor Issue...............  COMERR..............  communications error...  Unable to communicate with
                                                                                      external data link (to
                                                                                      home office or wireless
                                                                                      service provider).
External Sensor Issue...............  NO--ECM.............  no ECM data............  No sensory information
                                                                                      received from vehicle's
                                                                                      Engine Control Module
                                                                                      (ECM).
External Sensor Issue...............  ECM--ID.............  ECM ID number mismatch.  ECM identification/serial
                                                                                      number mismatch (with
                                                                                      preprogrammed
                                                                                      information).
----------------------------------------------------------------------------------------------------------------

2. Communications Standards for the 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 EOBRs must be capable of transferring RODS using one of the 
following wired standards:

2.2.1 Universal Serial Bus 2.0

2.2.2 RS-232.

    2.3 EOBRs must be capable of transferring RODS using one of the 
following wireless standards:

2.3.1 Institute of Electrical and Electronics Engineers (IEEE) 802.11g

2.3.2 Bluetooth

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 (within 300 meters) 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 1 minute. 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 Census Bureau 2000 Gazetteer 
``County Subdivision'' data.

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 1 
percent accurate to an odometer calibrated per 24-hour period.
    3.1.2.4 If the EOBR obtains distance-traveled information from a 
source external to the CMV, the information recorded must be 
accurate to within 1 percent of actual distance traveled 
per 24-hour period as measured by a calibrated 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.
    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 -20 degrees F to 120 degrees F.
    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.

4. Example of Grid Generated From EOBR Data

    4.1 The following picture shows an acceptable format for grid 
versions of logs generated by EOBR data.

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PART 396--INSPECTION, REPAIR AND MAINTENANCE

    24. 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.

    25. Amend Sec.  396.9 to revise 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.  
385.511(d) of this chapter. An ``Out of Service Vehicle'' sticker shall 
be used to mark vehicles ``out of service.''
* * * * *

    Issued on: January 5, 2007.
John H. Hill,
Administrator.
[FR Doc. 07-56 Filed 1-11-07; 8:45 am]
BILLING CODE 4910-EX-P